Opinion
A145131
11-03-2017
GEORGE DANIEL, Plaintiff and Appellant, v. JOSEPH RICHARDS et al., Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Sonoma County Super. Ct. No. SCV253739)
Plaintiff George Daniel, appearing in propria persona, appeals from a judgment for defendants, Santa Rosa Junior College Police Officers Joseph Richards and Brittany Hawks, following the trial court's grant of summary judgment. Daniel alleges the officers detained and arrested him without adequate justification, refused to take him before a magistrate, and used excessive force in his detention and arrest. On appeal, Daniel argues that each of his tort causes of action is supported by substantial evidence and the trial court committed various errors in deciding the officers' motion. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. The Events of May 26 , 2012
On May 26, 2012, at approximately 9:30 p.m., Officers Richards and Hawks, in full police uniforms and in a marked police vehicle, were conducting a routine traffic stop near the swim center when they were advised that the Santa Rosa Police Department had received a burglar alarm call for the swim center. Officer Richards advised dispatch that they were already on scene and would investigate.
Conducting a perimeter search of the swim center, the officers found an open door, which heightened their suspicion because it was late at night and the swim center was closed. As they repositioned themselves to get a view through the door, Daniel suddenly appeared, riding a bicycle at a "faster than medium" pace along the side of the building adjacent to the open door and heading away from the building.
Officer Richards shined his flashlight on Daniel, identified himself as a police officer and ordered him to stop. Officer Hawks yelled similar commands. Daniel looked in the officers' direction, but did not stop riding. Officer Richards repeated his command to stop. Daniel looked in Officer Richards's direction, but continued to pedal away.
Believing that Daniel may have been involved in a burglary, the officers followed him, Officer Hawks on foot and Officer Richards in the patrol vehicle with lights and sirens activated. Although he noticed the officers' sirens and flashing lights following him in the dark, Daniel kept riding, making several turns and passing rapidly through three stop signs without stopping. He did not stop until Officer Richards drove his patrol car around Daniel and stopped diagonally in front of him. Officer Richards exited the patrol vehicle and ordered Daniel to get off the bicycle. Officer Hawks grabbed Daniel's left arm and Officer Richards his right. Daniel did not immediately dismount. Once Daniel laid the bicycle down, Officer Richards handcuffed him and advised him that he was not under arrest; rather, the detention was for the safety of both Daniel and the officers. Daniel did not resist being handcuffed and the officers did not use any force to put his hands behind his back.
These acts constituted violations of Vehicle Code sections 21200, subdivision (a) and 22450, subdivision (a). Daniel conceded that he did not stop at the stop signs and testified that he was unaware of any evidence that Vehicle Codes are laws, or that they apply to him.
Daniel refused Officer Richards's requests to provide his name and identification, repeatedly asking for the officers' authority to demand such information. When Officer Richards asked Daniel why he refused to stop as ordered, Daniel questioned Officer Richards's authority to stop him.
Officer Richards searched Daniel's person and a canvas bag attached to his bicycle. He found two bank cards displaying the name George Daniel and asked Daniel if that was his name. Daniel again demanded his authority to request that information. When Officer Richards asked Daniel why he was near the swim center and why he refused to stop, Daniel challenged his authority and refused to speak without counsel present. After being told that he could provide identifying information and be released with a citation or, if the officers could not identify him, he would have to be taken to jail, Daniel still refused to provide any identifying information.
Believing probable cause existed for Daniel's arrest, Officer Richards informed him that he was under arrest for, among other things, willfully delaying and resisting the lawful orders of a police officer. Daniel again questioned Officer Richards's authority to arrest him and then demanded to be taken before a magistrate immediately. He was transported to the Sonoma County Junior College District Police Station. At that point, Officer Hawks had no further contact with him.
At the station, Daniel complained that the handcuffs were too tight. Officer Richards promptly checked the handcuffs and found their tightness to be appropriate, but loosened them slightly. After a few minutes at the station, Daniel was transported to the Sonoma County jail. When they arrived at the jail, Daniel complained again, and Officer Richards made further adjustments to the handcuffs to make Daniel more comfortable.
Daniel claims that the handcuffs were tight and painful from the beginning, but he does not recall complaining to the officers when he was handcuffed; only later, at the station.
Because Daniel refused to provide his full name, date of birth, address or any identifying information, and because he demanded to be taken before a magistrate, he was booked into the Sonoma County jail instead of being released with a citation. (Pen. Code, § 853.6, subds. (i)(5), (i)(8).) Officer Richards had no further contact with Daniel after he was booked into the Sonoma County jail. Daniel was released from jail after his bail was posted.
Daniel claims that, after the incident, he had bruises on his arms and cuts on his wrists, but he does not know when or in whose custody these injuries occurred. Daniel never requested medical treatment or pain relief at the jail and never sought medical treatment for his alleged injuries. B. Procedural History
In May 2013, Daniel filed a complaint against numerous persons and entities arising out of his arrest. As amended, his complaint alleged causes of action for assault, battery, negligence, intentional infliction of emotional distress, and negligent infliction of emotional distress.
The officers moved for summary judgment. In both his opposition memorandum of points and authorities and responding separate statement of material facts, Daniels expressly declined to dispute any of the officers' material facts. Instead, he challenged their characterizations of the facts, disputed their legal conclusions, and argued that additional material facts, of which he sought judicial notice, created triable issues. However, Daniel did not succeed in his efforts to include his "additional material facts" in the summary judgment record. While he included in the body of his opposition memorandum a request for judicial notice of various court documents, his request was denied. Thus, the record consisted solely of the officers' evidence. Daniel also failed, in his opposition papers, to cite to any of the evidence he contended supported his factual contentions.
Nor did Daniel submit any written objections to the officers' evidence. Because there is no reporter's transcript, we do not know whether he lodged any objections at the hearing.
The trial court granted summary judgment, finding that the officers had satisfied their burden to show the absence of any triable issues of material fact. The court noted that Daniel had expressly declined to dispute their material facts. It also observed that Daniel's responding separate statement failed to cite any evidence, and that his memorandum of points and authorities did not raise any meritorious arguments. Reasoning that the undisputed evidence showed that Daniel's detention and arrest were supported by reasonable suspicion and probable cause, respectively, and that the force used by the officers was objectively reasonable, the court ruled that Daniel's individual tort causes of action failed. The motion was granted and judgment was entered in favor of Officers Richards and Hawks. This appeal followed.
Concurrently with his opposition, Daniel filed a motion for judgment on the pleadings. He contends that the court should have heard his motion with the officers' summary judgment motion. However, Daniel filed his motion on January 23, 2015, fewer than 16 court days before the February 6, 2015 hearing date, and thus without adequate notice. (Code Civ. Proc., § 1005, subd. (b).) Having granted summary judgment on all of Daniel's claims against the officers, the court found that Daniel's pleadings motion was moot and took it off calendar.
II. DISCUSSION
A. Daniel's Request to Lodge an Appendix Lacks Merit
In addition to providing his arguments in support of his appeal, Daniel's opening brief annexes an appendix. We agree with Officers Richards and Hawks that the request is improper. An appellant must elect one form for the record on appeal. (Cal. Rules of Court, rule 8.120(a).) Having chosen to proceed with a clerk's transcript, Daniel cannot later seek to proceed by way of an appendix. Although Daniel is self-represented, as he was at trial, he is entitled to the same, but no greater, consideration than other litigants and attorneys and thus is held to the same rules of procedure as an attorney. (Stokes v. Henson (1990) 217 Cal.App.3d 187, 198; County of Orange v. Smith (2005) 132 Cal.App.4th 1434, 1444.)
Even if we were to liberally construe Daniel's request as a motion to correct the record, the motion would be procedurally improper, having been directed to the Court of Appeal. (Cal. Rules of Court, rule 8.155(b)(1).) It is also substantively without merit. As none of the items in Daniel's proffered appendix were identified in his notice designating record, the clerk of the superior court committed no error. As such, we decline to consider the proffered appendix. B. Standard of Review
The standards for granting summary judgment are well settled. A trial court must grant a motion for summary judgment "if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Code Civ. Proc., § 437c, subd. (c).)
Our review of an order granting summary judgment is de novo. Under such circumstances, the trial court's stated reasons for granting summary judgment "are not binding on us because we review its ruling, not its rationale." (Ram's Gate Winery, LLC v. Roche (2015) 235 Cal.App.4th 1071, 1079.) "Moreover, 'we apply the same three-step analysis as the trial court. First, we identify the issues framed by the pleadings. Next, we determine whether the moving party has established facts justifying judgment in its favor. Finally, if the moving party has carried its initial burden, we decide whether the opposing party has demonstrated the existence of a triable, material fact issue.' " (McNair v. City & County of San Francisco (2016) 5 Cal.App.5th 1154, 1162.) C. Daniel's Arguments , Common to All of His Tort Claims , Lack Merit
Daniel contends that all of his tort claims have merit, and should not have been dismissed, for three reasons: because his detention was unlawful, his arrest was unlawful, and because Officers Richards and Hawks used "excessive force" against him. Daniel has asserted other theories of liability for some of these causes of action, which are addressed below. However, because the above questions affect all of his causes of action, we address these common issues first.
Daniel's complaint is not a model of clarity, but liberally construed, its allegations align with his arguments. Although Daniel's negligence cause of action, as pleaded, was limited to specific acts not including the alleged unlawfulness of his stop and arrest, he does allege that he was "kidnapped" and incorporated the unlawful arrest allegations in his negligent infliction of emotional distress claim. He pursued those theories, without objection, at summary judgment.
Similarly, Daniel's complaint seems to disclaim "excessive force" allegations as a basis for his battery claim; however, excessive force allegations were also incorporated into his negligent infliction of emotional distress claim. Further, the apparent disclaimer is a contention of law which he later abandoned in connection with the summary judgment motion, without objection by the officers.
For example, Daniel also alleged and argued that the officers committed negligence in failing to contact their supervisor to confirm that they had jurisdiction over him; failing to offer him a chemical test in connection with his arrest for driving under the influence; refusing to allow him to contact an attorney; searching his bicycle and person; intimidating him with their repeated demands (Officer Richards) and silence (Officer Hawks); failing to provide their authority to detain, question, and arrest him; and failing to take him before a magistrate. These assertions are addressed below in connection with individual causes of action.
1. Daniel's Detention was Supported by Reasonable Suspicion
Daniel argues that the court erred in finding that he was lawfully detained, and therefore that his tort claims should have gone to a jury. We disagree, as there were no triable issues regarding the lawfulness of his detention.
Consistent with Fourth Amendment jurisprudence, a police officer may detain a person for questioning or other limited investigation without a showing of probable cause to arrest the person. (Terry v. Ohio (1968) 392 U.S. 1, 27; see Cal. Const., art. I, § 13.) "A detention is reasonable under the Fourth Amendment when the detaining officer can point to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity." (People v. Souza (1994) 9 Cal.4th 224, 231 (Souza).)
Daniel asserts that Officers Richards and Hawks lacked any rational reason to detain him. However, the undisputed facts (supported by the evidence) show that, while investigating a possible burglary of a closed business at night, the officers saw Daniel riding his bicycle away from the side of the building where the break in appeared to have occurred. Despite their loud and repeated commands to stop, Daniel fled. He continued to flee even as they pursued him with emergency lights and sirens activated. In an apparent effort to evade the officers, Daniel also failed to stop at posted stop signs and committed other traffic violations.
Based upon these undisputed facts, a reasonable officer could suspect that Daniel may have been involved in a burglary, set off the alarm, and was fleeing the scene to avoid apprehension by defendants. (Souza, supra, 9 Cal.4th at p. 242 ["presence on the sidewalk at 3 a.m. of two people who appeared to be talking to the occupants of a car parked in total darkness in an area that [investigating officer] described as a 'high crime area,' coupled with the evasive conduct by the occupants and defendant's sudden flight when [the officer] directed his patrol car's spotlight toward the group, justified a brief, investigative detention"]; see Illinois v. Wardlow (2000) 528 U.S. 119, 124 [unprovoked, "[h]eadlong flight" from police in any area warrants investigatory detention].)
Thus, the burden properly shifted to Daniel to demonstrate triable issues of material fact on this issue. Daniel, however, expressly declined to dispute any of the officers' material facts. He also failed to object to the admissibility of the officers' evidence. And he failed to properly introduce evidence showing triable issues of fact.
For the first time on appeal, Daniel objects to the officers' reliance upon their counsel's declaration at summary judgment. Daniel cites no California authority in favor of his contention, and the Eastern District of Pennsylvania case he cites is inapposite, as it involved reliance solely upon an advocate's bare argument, not an attorney of record's sworn declaration as to matters within his personal knowledge. Further, because Daniel provides no evidence that he made this objection "at the hearing" below, the objection is waived. (Code Civ. Proc., § 437c, subds. (b)(5), (d); Reid v. Google, Inc. (2010) 50 Cal.4th 512, 531-532 [an evidentiary objection is waived if not presented in writing before the hearing or raised orally at the hearing].)
On this last point, as noted above, Daniel included a "Motion for Judicial Notice" within his opposition memorandum, which he claims the trial court erroneously denied. Daniel's request was procedurally improper, having been set forth in the body of his opposition to defendants' motion. (Cal. Rules of Court, rules 3.1350(e), 3.1306(c).) It was also substantively meritless, as he sought judicial notice of the truth of the matters set forth in court records. (Evid. Code, § 452, subds. (c), (d); Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471, 482 [while court documents may be the subject of judicial notice, "the truth of matters asserted in such documents is not"].)
Daniel also argued that his detention was unlawful because the officers never produced evidence that any burglary or forced entry occurred or that Daniel committed the crime. This is likewise unavailing. " ' "[T]he possibility of an innocent explanation does not deprive the officer of the capacity to entertain a reasonable suspicion of criminal conduct." ' " (People v. Brown (2015) 61 Cal.4th 968, 985.)
For the foregoing reasons, the trial court correctly found that the officers had shifted the burden to Daniel to demonstrate triable issues as to the legality of his detention. Daniel, having failed to show any disputed facts material to the question of reasonable suspicion, failed to meet his burden. For purposes of summary judgment, Daniel's detention was lawful.
2. Daniel's Arrest was Supported by Probable Cause
Daniel's contention that there are triable issues as to the lawfulness of his arrest likewise lacks merit. "An arrest is valid if supported by probable cause. Probable cause to arrest exists if facts known to the arresting officer would lead a person of ordinary care and prudence to entertain an honest and strong suspicion that an individual is guilty of a crime." (People v. Kraft (2000) 23 Cal.4th 978, 1037.) This only requires facts supporting a probability of a crime, not proof sufficient to convict. (In re Charles C. (1999) 76 Cal.App.4th 420, 423.) This, again, is an objective standard, based upon the totality of facts and circumstances known to the officer at the time of arrest. (People v. Rosales (1987) 192 Cal.App.3d 759, 765; see also Adams v. Williams (1972) 407 U.S. 143, 149 [the "totality" analysis is undertaken generally, and does not require the same kind of specific evidence in support of each element of a crime that is needed for conviction].) When the facts are not in conflict, the issue of probable cause is a question of law. (Giannis v. City & County of San Francisco (1978) 78 Cal.App.3d 219, 225.)
The officers' factual contentions were supported by the evidence and were undisputed: Daniel persisted in fleeing from uniformed officers, despite seeing them and their emergency lights and hearing shouting and sirens. In the course of their encounter, the officers saw Daniel violate Penal Code section 148, subdivision (a)(1) [willfully resisting, delaying, or obstructing a peace officer in the conduct of his duties], and Vehicle Code sections 21806, subdivision (1)(1) [failure to pull over and stop on the right side of the road to yield to an authorized emergency vehicle], 21200, subdivision (a), and 22450, subdivision (a) [failing to stop at posted stop signs, which applies equally to bicyclists]. They observed facts supporting the probability of multiple crimes and thus had ample probable cause to arrest Daniel.
Daniel's proffered reasons that his arrest was unlawful all lack merit. For example, he contends that there was no probable cause to arrest him for driving while intoxicated (and that the district attorney never pursued this charge). However, " '[p]robable cause need only exist as to any offense that could be charged under the circumstances.' " (Bingham v. City of Manhattan Beach (9th Cir. 2003) 341 F.3d 939, 952, abrogated on other grounds by Virginia v. Moore (2008) 553 U.S. 164; see also Devenpeck v. Alford (2004) 543 U.S. 146, 156.) For the same reason, the fact that the officers' investigation never turned up evidence of any burglary is irrelevant; so long as there was probable cause to arrest for some crime, the arrest comports with Fourth Amendment principles.
The Sonoma County District Attorney charged Daniel in a misdemeanor complaint with resisting, delaying, and obstructing a police officer in violation of Penal Code section 148, subdivision (a)(1), and riding a bicycle under the influence of alcohol or a drug in violation of Vehicle Code section 21200.5. The complaint, however, was eventually dismissed on speedy trial grounds.
Daniel's related argument that his arrest was unlawful because the officers did not offer Daniel a blood, breath or urine test related to the driving under the influence charge is not supported by any authority suggesting the failure to so advise retroactively invalidates his arrest. As discussed above, if the detention was justified on other grounds, it is irrelevant that he was also suspected of driving under the influence or that that charge was ultimately dismissed.
Daniel's contention that some "exigency" was required to effect a lawful arrest is not supported by any of his authorities, which involved warrantless seizures within a home. (See People v. Ramey (1976) 16 Cal.3d 263; Welsh v. Wisconsin (1984) 466 U.S. 740.) While the trial court's order does refer to "exigent circumstances," this was apparently used as shorthand for probable cause, as the term followed the court's description of Daniel's various traffic violations. As a matter of law, exigency was not a prerequisite for Daniel's arrest. Nor does the court's reference suggest that it "manufactured" evidence to support its ruling.
Daniel's argument that the officers unlawfully ordered him to identify himself is also unavailing, as they had reasonable suspicion to detain and investigate Daniel. There is no evidence in the record to support his claim that he was arrested for refusing to identify himself. (Cf. United States v. Christian (9th Cir. 2004) 356 F.3d 1103, 1106-1108; Brown v. Texas (1979) 443 U.S. 47, 52 [law enforcement lacked reasonable suspicion to detain defendant and then arrested him for refusing to provide identification].)
Finally, Daniel's claims that his arrest was unlawful absent the issuance of an arrest warrant and because he was not taken before a magistrate within 48 hours of his arrest lack merit because the officers, having observed him commit multiple crimes, had probable cause to arrest.
On reply, Daniel challenges the lawfulness of the search of his person and bicycle bags. Because he waited until his reply brief to raise this issue, and failed to supply any cogent argument or authority in the summary judgment proceedings below, we decline to address it. (See Holguin v. Dish Network LLC (2014) 229 Cal.App.4th 1310, 1328 & fn. 9.) In any event, Daniel does not identify, and we do not find, evidence in the record that the search of his person or his effects was outrageous (for purposes of intentional infliction of emotional distress) or caused him any physical or emotional harm.
3. The Officers' Use of Force to Detain and Arrest Daniel Was Not Unreasonable
Daniel claims that the trial court erred in finding no triable issues as to the reasonableness of force used in detaining and arresting him. As we discuss, this argument also lacks merit.
An officer " 'may use reasonable force to make an arrest, prevent escape or overcome resistance, and need not desist in the face of resistance.' " (Brown v. Ransweiler (2009) 171 Cal.App.4th 516, 527.) Whether a law enforcement official has used excessive force in the course of discharging his or her duties is measured against the Fourth Amendment's standard of objective reasonableness. (Graham v. Connor (1989) 490 U.S. 386, 388.) The court must evaluate the totality of the facts and circumstances of the particular case, including the severity of the crime, whether the suspect posed an immediate threat to the safety of the officer or to others, and whether the suspect was actively resisting or attempting to evade arrest by flight. (Id. at p. 396.) The reasonableness of the officer's conduct is judged from the perspective of an objectively reasonable officer on the scene. (Ibid.) In recognition of the fact that officers are often forced to make split-second decisions in tense situations, we accord some deference to those decisions. (Lopez v. City of Los Angeles (2011) 196 Cal.App.4th 675, 685.) For the same reason, plaintiff bears the burden to establish that the officers' use of force was excessive. (Id. at p. 686.)
First, Daniel contends that the officers pulled his arms, causing him to lose his balance, instead of allowing him to dismount his bicycle normally, and that this was not necessary or reasonable under the circumstances. This argument is not properly before us, as Daniel did not include this "fact" in his separate statement or submit admissible evidence to support it in opposition to the motion, below and the trial court correctly noted its discretion to refuse to consider it. (North Coast Business Park v. Nielsen Construction Co. (1993)17 Cal.App.4th 22, 31; San Diego Water Crafts, Inc. v. Wells Fargo Bank (2002) 102 Cal.App.4th 308, 315-316.) Further, this assertion directly conflicts with his own deposition testimony.
In asserting that excessive force was utilized, Daniel focuses on the officers' use of handcuffs. The officers were lawfully investigating an uncooperative and hostile person who was suspected of burglary, had committed multiple (albeit minor) crimes in their presence, and had fled when they tried to stop him. Their decision to handcuff him was reasonably necessary to protect their safety and prevent him from fleeing again. Their use of force was minimal, as they used no force to handcuff him and promptly adjusted the handcuffs each time he complained. On these undisputed facts, the trial court correctly concluded that the degree of force used was appropriate. Wall v. City of Orange (9th Cir. 2004) 364 F.3d 1107, on which Daniel relies, is not to the contrary. (See Tibbs v. City of Chicago (7th Cir. 2006) 469 F.3d 661, 663, 665-666 [tightly handcuffing arrestee for 30 minutes was not excessive use of force where arrestee complained only once to officer that the handcuffs were too tight; he gave the officer no indication of the degree of pain caused by the handcuffs; he suffered minimal, if any, injury, other than redness on his wrists for less than two days; and he sought no medical care for any wrist injury].)
Daniel also cites to cases involving the use of pepper spray and brandishing of firearms. While generally instructive, these cases are not directly relevant here, where no weapon was drawn or discharged.
Finally, Daniel contends that there is an absolute right to jury trial for claims of excessive force. Thompson v. City of Los Angeles (2006) 142 Cal.App.4th 154 does not stand for such a proposition. Trial by jury is only required when there are triable issues of material fact. (See Santos v. Gates (9th Cir. 2002) 287 F.3d 846, 852-855.) In Santos, the testimony of law enforcement officers was arguably undermined by other, conflicting evidence, such that a jury might have discredited the officers' testimony. (Id. at p. 852.) Here, Daniel failed to identify any evidence that would potentially undermine the officers' credibility. D. Daniel's Individual Causes of Action Fail
1. The Assault and Battery Claims Fail as a Matter of Law
Daniel argues that his assault and battery claims are "fully supported." An assault is an unlawful attempt, coupled with the present ability, to commit a violent injury upon another. (Pen. Code, § 240.) Similarly, a battery requires a willful and "unlawful" use of force or violence upon the person of another. (Pen. Code, § 242.) As we have explained, the trial court properly found that there was no evidence in the record to suggest either Daniel's detention or his arrest was unlawful. It also found that, as a matter of law, the force they used to detain and arrest him was not excessive. The court also properly rejected Daniel's contentions that a warrant or probable cause hearing was required to effect a lawful arrest. Thus, the court correctly granted summary adjudication of the claims for assault and battery.
2. There are Likewise No Triable Issues as to Daniel's Negligence Claims.
Daniel pleaded numerous theories of liability for his negligence claims. As we have explained, the main basis for his negligence claim, that Officers Richards and Hawks breached their duties to comply with the law in detaining and arresting him, fails as a matter of law. Daniel failed to meet his burden to provide some evidence that the officers breached a duty to him. (J.L. v. Children's Institute, Inc. (2009) 177 Cal.App.4th 388, 396 (J.L.).) On the undisputed facts, the officers' conduct was lawful and justified. Thus, the trial court properly found that they breached no duty to Daniel in detaining and arresting him.
Daniel's negligence claim incorporates his general allegations that there was no probable cause for his arrest, asserts that the officers violated his rights by "imprisoning" him unlawfully, and alleges they detained him in a reckless and dangerous manner.
As discussed above, the trial court also properly rejected Daniel's ancillary "unlawful arrest" arguments, for example, that his arrest was pretextual and retaliatory, that the law enforcement's investigation never turned up evidence of any burglary, or that he should have been taken before a magistrate. These contentions are irrelevant if probable cause to arrest is otherwise established.
Daniel also pleaded and argued that the officers' failure to offer him a choice among blood, breath, and urine tests was negligent and would support a claim (not alleged) for malicious prosecution. As noted, any failure to advise Daniel of his choice of tests would not retroactively invalidate his arrest. (See Ritschel v. City of Fountain Valley (2006) 137 Cal.App.4th 107, 119 [failure to advise arrestee of choice of tests involves no violation of any constitutionally protected interest].) Nor does the record reflect any evidence that the officers' failure to offer these tests caused a cognizable injury. (Lopez v. City of Los Angeles, supra, 196 Cal.App.4th at p. 685.)
In addition, Daniel asserts that the officers' failure to consult with their supervisor to confirm that they had jurisdiction before "kidnapping" him was negligent. However, he does not provide any law establishing an officer's duty to conduct due diligence regarding his or her jurisdiction before making an arrest. (J.L., supra, 177 Cal.App.4th at p. 396.) Nor does he identify evidence that the officers may have lacked jurisdiction over him such that an inquiry would have been prudent.
Further, Daniel argues that the officers' failure to take him before a magistrate for a probable cause hearing within 48 hours of his arrest constituted negligence. This contention, however, does not state a claim against the officers. After arresting Daniel, Officer Richards immediately booked him into the Sonoma County jail, transferring his custody to the county. Neither Officer Richards nor Hawks had any further contact with Daniel. There is no evidence that defendants were responsible for any delay in bringing Daniel before a magistrate on the next available court date.
Finally, Daniel contends there was evidence to support his claim for negligent imprisonment. On this record, it appears that this claim rests primarily, if not entirely, on the conduct of an independent government entity, the Sonoma County jail. As we find post, in section II.E., the officers established as a matter of law that they were not vicariously liable for the actions of the jail. The imprisonment claim also appears to lack substantive merit because Daniel caused, or at least consented to, his own incarceration in two ways: First, even after being advised that providing personal identification would have allowed him to be cited and released, he refused to do so. (Pen. Code, § 853.6, subd. (i)(5).) Second, he demanded to be taken before a magistrate, which authorized his retention in custody under Penal Code, section 853.6, subdivision (i)(8).
3. Daniel's Claim for Negligent Infliction of Emotional Distress Fails
Daniel also asserts a claim for negligent infliction of emotional distress. As he concedes, this claim depends upon the existence of a viable negligence claim. (See Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 985-986; Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1072.) As Daniel's negligence cause of action was properly dismissed at summary judgment, we find that the trial court also properly disposed of his claims for negligent infliction of emotional distress.
This cause of action incorporates all facts previously pleaded and alleges the officers harmed him by acting "unlawfully" and used excessive force in detaining him.
4. The Intentional Infliction of Emotional Distress Claim Also Lacks Merit
Daniel argues that his claim for intentional infliction of emotional distress was erroneously decided on summary judgment. This tort requires, inter alia, " ' "outrageous conduct" ' " by the defendant with the intent to cause emotional distress to plaintiff, or reckless disregard. (Wong v. Jing (2010) 189 Cal.App.4th 1354, 1376.) As a matter of law, a detention and arrest that are legally justified and reasonable under the Fourth Amendment cannot be fairly characterized as so " 'extreme and outrageous' " as to exceed the bounds tolerated in a civilized community. (See Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 499, fn. 5; Avina v. United States (9th Cir. 2012) 681 F.3d 1127, 1133 & fn. 7.) Thus, the grant of summary judgment was also proper as to this cause of action. E. The Officers Have No Vicarious Liability as a Matter of Law
To the extent Daniel argues the officers should be liable for the actions of jail personnel, that is addressed below.
Daniel argues that the trial court erroneously accepted the officers' contention that, as public employees, they cannot be liable for the actions of others, including personnel at the Sonoma County jail. (Gov. Code, § 820.8 ["Except as otherwise provided by statute, a public employee is not liable for an injury caused by the act or omission of another person."].) The order granting summary judgment did not address this issue. Consistent with the presumption favoring validity of the court's judgment, we infer that the court impliedly ruled in the officers' favor on this issue. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564 [" 'A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown' "], italics omitted.) In addition, the trial court's failure to address this issue constitutes harmless error so long as independent review establishes the ruling itself is correct, as we conclude below. (Byars v. SCME Mortgage Bankers, Inc. (2003) 109 Cal.App.4th 1134, 1146.)
Government Code section 820.8 confers immunity on public employees for the acts of others. Daniel argues, however, that this statute must be construed in light of Government Code sections 820.4 and 815.6, which favor a finding of vicarious liability. Not so. Government Code section 820.4 protects a public employee who exercises due care in the execution or enforcement of any law from liability "for his act or omission" except as to claims for "false arrest or false imprisonment." (Gov. Code, § 820.4.) The exception preserves an employee's liability for his own act or omission giving rise to false arrest or imprisonment (ibid.), but it does not address an employee's liability (let alone create it) for the acts of others.
Daniel relies heavily on Rodriguez v. County of Los Angeles (2013) 217 Cal.App.4th 806, which he also cited below. That case concerned the liability of a public entity, not a public employee, and turned on a statute that expressly provided for liability on the part of a public entity. (Id. at pp. 810-812, discussing Gov. Code, § 815.2.)
Section 815.6 is similarly unhelpful to Daniel. By its terms, this provision applies the rule of "negligence per se" to "a public entity," not to public employees. It also shields a public entity from negligence per se liability if the entity can establish that it "exercised reasonable diligence" to discharge its duty. (See Gov. Code, § 815.6.)
None of Daniel's authorities involve claims against a public employee for the prospective conduct of others; rather, they affirmed the imposition of liability against public employees for injuries caused by their own act of imprisonment. (See e.g., Abbott v. Cooper (1933) 218 Cal. 425 [action against jailor for false imprisonment where jailor knew or should have known that the arrest was illegal]; Smith v. Madruga (1961) 193 Cal.App.2d 543 [jailor who retained custody of person, knowing he was erroneously arrested, may be liable for contributing to false imprisonment].) Further, there is no evidence that the abuse he alleges by Sonoma County jail personnel was in any way foreseeable. As such, the trial court correctly found the officers had no vicarious liability as a matter of law. F. The Motion for Judgment on the Pleadings was Properly Deemed Moot
Daniel contends that it is "inconceivable" that the officers, who were in regular contact with jail personnel (like "mafia boss[es]" in a criminal conspiracy), did not foresee his abuse in the Sonoma County jail and compares Officers Hawks and Richards to the Nazis at Nuremberg who claimed they were only "following orders." There is nothing in the record concerning ongoing contacts between the officers and jail personnel or of any "orders" to transfer custody of Daniel. Ironically, had Daniel not insisted upon being taken before a magistrate or refused to provide government identification, he would likely have been cited and released by the officers. (See Pen. Code, § 853.6, subds. (i)(5), (i)(8).)
Finally, Daniel asserts that he was improperly denied a hearing on his motion for judgment on the pleadings. The motion itself was not designated for inclusion in the appellate record. However, the docket reflects that this motion was filed fewer than 16 court days before the date noticed for hearing the officers' summary judgment motion. Absent an order, for good cause shown, shortening time to hear Daniel's pleadings motion, the court could not hear the motion on the same date as the summary judgment motion without infringing on the officers' due process rights. (Code Civ. Proc., § 1005, subd. (b).) The docket does not reflect that Daniel applied for, or obtained, an order shortening time. Thus, the trial court's decision to hear the officers' summary judgment motion as scheduled was correct. As the officers' summary judgment motion disposed of all claims against them, the trial court's decision to take Daniel's improperly noticed motion off calendar, as moot, was also correct.
III. DISPOSITION
The trial court's judgment is affirmed. Each party shall bear its own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
/s/_________
KENNEDY, J. We concur: /s/_________
RIVERA, ACTING P. J. /s/_________
STREETER, J.
Judge of the Superior Court of California, County of Contra Costa, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.