Opinion
A147483
03-07-2018
ORZELL LONG, Plaintiff and Appellant, v. CITY AND COUNTY OF SAN FRANCISCO 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (City & County of San Francisco Super. Ct. No. CGC-11-516199)
Plaintiff Orzell Long appeals the trial court's grant of summary judgment as well as the subsequent denial of his motion for reconsideration. Long claims the defendants failed to meet their burden to set forth evidence establishing that one or more elements of his causes of action cannot be established. He also argues that there are triable issues of material fact, that his separate statement in opposition to the summary judgment motion complied with statutory requirements, and that the court erred in denying his motion for reconsideration. We reject these contentions and shall affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On the morning of June 29, 2011, Long was at his home in San Francisco with a woman named Penny Brown, who did not live with him. Brown called 911 as a result of an argument with Long and reported that she was the victim of domestic violence. Long also called 911.
San Francisco police officers Jeff Smethurst and Oscar Abucay responded to the 911 calls. The computer aided dispatch system indicated Long could be heard arguing with his girlfriend during the 911 call. The dispatcher informed the officers there had been two prior domestic violence calls to Long's address.
Long was standing in front of his apartment building when the officers arrived. Abucay approached Long, while Smethurst went inside to interview Brown.
Brown told Smethurst that Long was her boyfriend and that they were arguing because Brown believed Long was cheating on her with a woman who had AIDS. Brown also reported that Long had grabbed her and thrown her on the bed. Smethurst noticed that the bedroom was in a state of disarray and that Brown appeared frightened. Abucay, who was being trained by Smethurst, also interviewed Brown at Smethurst's request. Brown told Abucay essentially the same story she had told Smethurst. The officers determined there was probable cause to arrest Long for violating Penal Code section 243, subdivision (e)(1).
Abucay handcuffed Long. At no point did Long tell the officers the handcuffs were too tight or that they were causing him pain. Abucay walked Long to the police car and placed him in the back seat.
When Long was inside the police car, he shouted to Smethurst to make sure his door was locked before taking him to jail. The door to Long's apartment can be locked without a key by turning a button on the inside of the doorknob. Before the door was locked, Smethurst told Brown to gather her belongings and leave the apartment. Both officers saw Brown leave Long's apartment before Abucay locked the door. Although Long claims he never saw Brown leave the apartment, he admitted that he could not see his front door from the police car.
Long had a key in his pocket that would lock a steel security gate in front of his door. While seated in the police car, he gave the key to Smethurst. Long told Smethurst to give the key to his neighbor, Brandy, who was standing nearby watching the arrest. Abucay used Long's key to lock the gate in front of his door and then gave to the key to Brandy. Long saw Abucay hand the key to Brandy. Long yelled to Brandy, " 'Make sure you give it to Brianna to lock my door.' " Brianna knew Long's daughter. Long did not watch Brandy and does not know what she did after Abucay handed her the key.
Long claims his apartment was burglarized after he was arrested. He discovered that several items of property were missing when he returned to his apartment, including an Xbox gaming system, three watches, and his prescription medication.
Long filed suit against the City and County of San Francisco and its former police chief, Greg Suhr (collectively, defendants), based upon the events surrounding his arrest in June 2011. Among other things, he claimed he was arrested without probable cause and the officers were negligent in failing to secure his apartment, leading to the burglary in which items of personal property were stolen. The operative first amended complaint includes tort law causes of action for negligence, false imprisonment, assault and battery, intentional infliction of emotional distress, and conversion. The first amended complaint also includes causes of action against defendants alleging violations of Long's civil rights under federal law (42 U.S.C. § 1983). Defendants removed the case to federal court, where they moved for summary judgment. The federal district court granted summary judgment as to all of Long's federal claims but declined to assert supplemental jurisdiction over Long's state law tort claims. The matter was remanded back to state court.
Defendants moved for summary judgment on Long's remaining state law claims. Long, who was not represented by counsel at that point in time, filed an opposition. He did not include a separate statement of disputed facts in his opposition. He did, however, attach various unauthenticated and hearsay documents to his opposition, such as a police incident report, medical records, and unauthenticated letters. In reply, defendants argued the motion should be granted due to Long's failure to provide a responsive separate statement in violation of Code of Civil Procedure section 437c, subdivision (b)(3). Long then belatedly filed a separate statement that appeared to re-state the arguments contained his opposition brief. Attached to Long's separate statement were some of the same unauthenticated and hearsay documents he had attached to his earlier opposition brief. Defendants filed objections to the admissibility of the evidence attached to Long's opposition.
Further statutory references are to the Code of Civil Procedure unless otherwise specified.
The trial court issued a tentative ruling granting summary judgment for defendants. Because Long failed to notify defendants of his intention to contest the tentative ruling, as required under the local rules, the trial court did not permit Long to contest the tentative ruling at the hearing on the motion. The court granted defendants' summary judgment motion. In the order granting summary judgment, the court concluded that defendants had met their burden of production and demonstrated that none of Long's claims could be established, and it concluded that Long had failed to present any competent evidence in his opposition to create a triable issue of material fact. The court sustained defendants' evidentiary objections and noted that Long's failure to file an opposing separate statement in compliance with section 437c, subdivision (b) was a sufficient ground by itself to grant the motion.
Long filed a motion for reconsideration. Attached to his motion were the same set of unauthenticated, hearsay documents he had submitted with his earlier opposition to the summary judgment motion. The trial court denied Long's motion to reconsider on the grounds he failed to comply with the affidavit requirement of section 1008 and failed to raise any new issues of law or fact justifying reconsideration. Following entry of judgment, Long filed a timely appeal.
DISCUSSION
On appeal, Long claims the defendants failed to maintain their burden of production to support their summary judgment motion, and he contends he presented competent evidence creating triable issues of material fact. As discussed below, because defendants set forth a prima facie case for summary judgment supported by uncontroverted evidence, and because Long failed to file a timely or compliant responsive separate statement, his claims of error on appeal lack merit.
1. Governing Legal Principles and Standard of Review
A party opposing a summary judgment motion must "include a separate statement that responds to each of the material facts contended by the moving party to be undisputed, indicating whether the opposing party agrees or disagrees that those facts are undisputed. The statement shall also set forth plainly and concisely any other material facts that the opposing party contends are disputed. Each material fact contended by the opposing party to be disputed shall be followed by a reference to the supporting evidence. Failure to comply with this requirement of a separate statement may constitute a sufficient ground, in the court's discretion, for granting the motion." (§ 437c, subd. (b)(3).)
" 'The separate statement is not merely a technical requirement, it is an indispensable part of the summary judgment or adjudication process.' " (Kojababian v. Genuine Home Loans, Inc. (2009) 174 Cal.App.4th 408, 415.) Although the court has discretion under section 437c, subdivision (b)(3) to " 'grant summary judgment if the opposing party fails to file a proper separate statement, this provision does not authorize doing so without first determining that the moving party has met its initial burden of proof.' " (Id. at p. 416.)
A party moving for summary judgment satisfies its initial burden and sets forth a prima facie showing for relief by showing "there was no triable issue of material fact and that they were entitled to judgment as a matter of law." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 861.) "After a prima facie showing, the burden shifts to the opposing party to make a showing of the existence of a triable issue of fact. [Citation.] If the opposing party fails to submit the required separate statement, under the applicable law and rules, a trial court may conclude the opposing party has not satisfied his 'burden of production' showing a triable issue of fact." (Kojababian v. Genuine Home Loans, Inc., supra, 174 Cal.App.4th at p. 416.) When an opposing party fails to file a proper separate statement, the court may accept the facts as submitted by the moving party as true, as long as they are properly supported by evidence in the record. (See id. at p. 417.)
We review a grant of summary judgment de novo. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 860.) However, evidentiary rulings are reviewed under the deferential abuse of discretion standard. (Miranda v. Bomel Construction Co. (2010) 187 Cal.App.4th 1326, 1335.) Likewise, we also apply the abuse of discretion standard in reviewing a trial court's denial of a motion for reconsideration (Hudson v. County of Los Angeles (2014) 232 Cal.App.4th 392, 408) and in assessing whether the court erred in granting a summary judgment motion on the ground the opposing party failed to file a separate statement. (Whitehead v. Habig (2008) 163 Cal.App.4th 896, 901.)
2. Prima Facie Showing Supporting Summary Judgment
We first consider whether defendants satisfied their initial burden to set forth a prima facie case supporting summary judgment. A defendant is entitled to summary judgment if the defendant can show that one of more elements of a cause of action cannot be established or if there is a complete defense to the cause of action. (§ 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 853.) We address each of Long's causes of action in turn below.
a. False Imprisonment
Under California law, a police officer cannot be held civilly liable for an arrest if "[t]he arrest was lawful, or if the peace officer, at the time of the arrest, had reasonable cause to believe the arrest was lawful." (Pen. Code, § 847, subd. (b)(1).) The City and County of San Francisco and Suhr, acting in his capacity as police chief, likewise may not be held liable on a false arrest claim when the officers themselves are not liable. (See Gov. Code, § 815.2, subd. (b) [public entity not liable for injury resulting from act or omission of employee when employee is immune from liability].)
Reasonable or probable cause to arrest exists when the facts known to the arresting officer would lead a reasonable person to have a strong suspicion of the arrestee's guilt. (People v. Mower (2002) 28 Cal.4th 457, 473.) Here, probable cause existed to arrest Long for violating Penal Code section 243, subdivision (e)(1), which makes it a crime to commit a battery against a spouse, cohabitant, or a person "with whom the defendant currently has, or had previously had, a dating or engagement relationship." Because Long identified Brown as his girlfriend to the dispatcher, and because Brown told the officers that Long was her boyfriend, the officers reasonably believed that any battery of Brown fell under Penal Code section 243, subdivision (e)(1). Further, Brown told both officers that Long had refused to allow her to leave his apartment and had physically grabbed her and threw her on the bed twice. Brown gave consistent reports of the incident to both officers separately and appeared to be scared. The officers found her credible and concluded the disarray in Long's bedroom was consistent with Brown's version of the incident.
The facts set forth by defendants established probable cause to arrest Long. As a result, the defendants cannot be held civilly liable for the arrest and have met their burden on summary judgment to establish a complete defense to the cause of action for false imprisonment.
B. Assault and Battery
To prevail on a claim of battery against a police officer, the Plaintiff bears the burden of proving the officer used unreasonable force. (Edison v. City of Anaheim (1998) 63 Cal.App.4th 1269, 1272-1273.) In this case, Long is precluded from pursuing claims for excessive force because he failed to include allegations that the officers used excessive force in the government claim that preceded his complaint. Thus, Long's assault and battery cause of action rests solely on his claim that the act of handcuffing him constituted a battery.
Before Long filed his first amended complaint, the trial court granted defendants' motion to strike allegations that the officers used excessive force in light of Long's failure to include an excessive force allegation in his government claim.
Placing an arrestee in handcuffs is a distinguishing feature of a formal arrest considered necessary for the safety of officers and third parties. (See People v. Pilster (2006) 138 Cal.App.4th 1395, 1404-1405.) As explained above, the officers had probable cause to arrest Long. Accordingly, as a matter of law, it was reasonable for them to place Long in handcuffs following his lawful arrest. Defendants therefore met their burden on summary judgment to demonstrate that Long could not establish an element of his cause of action for assault and battery.
C. Conversion
"Conversion is the wrongful exercise of dominion over the property of another." (Burlesci v. Petersen (1998) 68 Cal.App.4th 1062, 1066.) Negligence in caring for the property of another is not an "act of dominion" over the property sufficient to make a person liable for conversion. (George v. Bekins Van & Storage Co. (1949) 33 Cal.2d 834, 838.)
Long's theory that the officers negligently failed to lock his door is not an act that supports liability for conversion. There is no evidence the officers took control of Long's apartment or belongings. Indeed, Long's claim is that no one was controlling his apartment such that someone was able to enter and steal his property. Accordingly, defendants met their burden to establish that Long's cause of action for conversion fails as a matter of law.
D. Negligence
Long's negligence cause of action is premised upon his claim that the arresting officers were negligent in failing to secure his apartment. "The elements of a negligence cause of action are the existence of a legal duty of care, breach of that duty, and proximate cause resulting in injury." (Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998.) Even assuming the officers had a legal duty to secure Long's apartment, the facts presented by defendants in their summary judgment motion demonstrated that the officers did not breach that duty.
The officers' declarations confirmed that they locked the door to Long's apartment after Brown had left. They then gave the gate key to Long's neighbor at his request. This evidence is sufficient to establish as a matter of law that the officers did not breach any duty they may have had to secure the apartment. Defendants therefore met their initial burden on summary judgment as to Long's negligence claim.
E. Intentional Infliction of Emotional Distress
In order to prevail on a claim for intentional infliction of emotional distress, a plaintiff must prove " ' " 'extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard for the probability of causing, emotional distress . . . .' Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community." ' " (Wilson v. Southern California Edison Co. (2015) 234 Cal.App.4th 123, 152.)
Long's cause of action for intentional infliction of emotional distress is based upon his claim that it was "extreme and outrageous" for the officers to allegedly leave his apartment unlocked and allow Brown or others to enter his home and steal his belongings. But, as noted, the evidence offered by defendants negates the claim that the officers failed to secure his apartment. Moreover, even if the officers had negligently failed to lock Long's apartment, that fact alone does not constitute conduct so outrageous or extreme that would support a claim for intentional infliction of emotional distress. Consequently, defendants met their initial burden on summary judgment to establish that the cause of action fails as a matter of law.
3. Failure to File Timely or Compliant Separate Statement
Having determined that defendants met their burden to set forth a prima facie showing justifying summary judgment, we turn to the question of whether the trial court abused its discretion in granting summary judgment on the basis of Long's untimely and noncompliant separate statement.
Long's separate statement was untimely and did not comply in any meaningful way with the Code of Civil Procedure or the rule of court governing separate statements. (See § 437c, subd. (b)(3); Cal. Rules of Court, rule 3.1350(f).) Among other things, the separate statement appears to simply repeat arguments contained in Long's opposition brief. None of the purported facts Long proffered is supported by declarations or admissible evidence. None of the documents submitted with the opposition are authenticated. And the separate statement does not refer to facts contained in defendants' separate statement, much less indicate whether those facts are disputed or not. Long never served objections to the evidence offered by defendants, and the court sustained defendants' objections to the evidence proffered by Long.
Under the circumstances, we discern no abuse of discretion in granting the summary judgment motion on the ground that Long filed a belated and noncompliant separate statement. Because Long failed to offer any admissible, competent evidence establishing the existence of triable issues of material fact, the court was entitled to rely upon the uncontroverted evidence proffered by defendants. (Kojababian v. Genuine Home Loans, Inc., supra, 174 Cal.App.4th at p. 417.) The court therefore did not err in granting summary judgment.
4. Motion for Reconsideration
As a final matter, Long contends the court erred in denying his motion for reconsideration. We disagree.
A party may seek reconsideration of a ruling under section 1008 upon a showing by affidavit of "new or different facts, circumstances, or law." (§ 1008, subd. (a).) Section 1008 is the exclusive statutory procedure for seeking reconsideration. (§ 1008, subd. (e).) A court lacks jurisdiction to consider a party's request to reconsider a ruling unless the statute's requirements are met. (Ibid.; Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 685.)
Evidence that could have been presented earlier is not new evidence. (Hennigan v. White (2011) 199 Cal.App.4th 394, 406; Morris v. AGFA Corp. (2006) 144 Cal.App.4th 1452, 1460.) In order to satisfy the affidavit requirement of section 1008, a party's affidavit must explain why the party failed to present such evidence earlier. (Garcia v. Hejmadi, supra, 58 Cal.App.4th at p. 690.)
Here, Long failed to file an affidavit with his motion for reconsideration. In the absence of such an affidavit or declaration, the motion for reconsideration was invalid and the court lacked jurisdiction to reconsider its ruling. (See Branner v. Regents of University of California (2009) 175 Cal.App.4th 1043, 1048-1049.) In any event, Long failed to offer any newly discovered facts in support of his motion. Instead, his motion cited to the same facts and arguments contained in his opposition. And, he attached a subset of the very same documents he had attached to his earlier opposition to the summary judgment motion. Under the circumstances, the court did not abuse its discretion in denying his motion for reconsideration.
DISPOSITION
The judgment is affirmed. Respondents shall be entitled to recover their costs on appeal.
/s/_________
McGuiness, Acting P.J. We concur: /s/_________
Siggins, J. /s/_________
Jenkins, J.
Retired Presiding Justice of the Court of Appeal, First Appellate District, Division Three, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------