Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. BC400195 Abraham Khan, Judge.
James Mitchell, in pro. per. and Lorraine Anderson for Plaintiff and Appellant.
Kamala D. Harris, Attorney General, David S. Chaney, Chief Assistant Attorney General, Alberto Gonzalez, Acting Senior Assistant Attorney General, Pamela J. Holmes, and Brent W. Reden, Deputy Attorneys General, for Defendant and Respondent.
BIGELOW, P. J.
James Mitchell sued Eric Brewer, a peace officer employed with the California Highway Patrol (CHP), under title 42 of the United States Code section 1983 (Section 1983). The trial court entered summary judgment in favor of Brewer, and Mitchell filed the appeal that comes before us today. We affirm.
FACTS
On October 18, 2006, at approximately 7:25 a.m., plaintiff Mitchell was driving his Honda Civic when defendant Brewer initiated a traffic stop. Mitchell drove his car to a parking lot at a gas station and stopped. The course of events that transpired next are discussed more fully below in addressing Mitchell’s challenge to summary judgment in favor of Brewer. For now, we note it is sufficient to note that the undisputed evidence shows that Mitchell got out of his car on his own volition, and that Brewer ultimately used pepper spray on Mitchell, and arrested him for resisting or delaying a peace officer. (Pen. Code, § 148.) A criminal case was filed against Mitchell, and, in May 2007, the Los Angeles City Attorney prosecuted the resisting charge to a jury. It is undisputed that Mitchell was not convicted.
In his respondent’s brief, Brewer tells us that the jury “was unable to reach a unanimous verdict and a mistrial was declared.” He offers no reference to supporting evidence. In his operative second amended complaint (SAC), Mitchell alleged that the resisting charge was “dismissed as the jury found [him] not guilty of any wrongdoing.” We see no evidence in the record showing such an outcome. Thus, all we know for certain is that Brewer and Mitchell concur that Mitchell was not convicted.
In October 2008, Mitchell filed a pro se complaint for damages against Brewer. The complaint alleged three causes of action: (1st) false arrest and false imprisonment; (2d) assault and battery; and (3d) general negligence. The basic thrust of the complaint was that Brewer had no cause to arrest Mitchell, that the officer had acted “violently” and with “excessive force” during the incident at the gas station, and that the officer “did not follow procedure as set forth in the CHP training manual for some undisclosed reasons.” In January 2009, Mitchell filed a first amended complaint, which essentially mirrored his original complaint.
Mitchell’s action originally involved the CHP as well as Brewer. The CHP is not part of the current appeal, and we do not in this opinion concern ourselves with the CHP.
In August 2009, Mitchell filed his SAC. Mitchell’s SAC alleged a single cause of action for deprivation of his civil rights under color of state law pursuant to Section 1983. Mitchell’s SAC alleged that all of Brewer’s action on October 18, 2006, had been motivated by racial discrimination.
In April 2010, Brewer filed a motion for summary judgment. Brewer supported his motion with his own declaration attesting to the following facts: (1) When Brewer decided to stop Mitchell’s car for making an unsafe turn or lane change (Veh. Code, § 22107), Brewer could not see the driver; (2) Brewer decided to stop Mitchell’s car as a result of the unsafe turning maneuver, and not for any other motivation; (3) Brewer instructed Mitchell to return to his car “at least four times;” (4) Mitchell never followed Brewer’s instructions; (5) Brewer used pepper spray as a result of believing his safety was threatened; and (6) at no time did Brewer discriminate toward Mitchell. In addition to these historical facts surrounding the events in the gas station, Brewer’s motion further included evidence in the form of expert testimony on the subject of police safety. Two experts submitted declarations, both of whom offered the opinion that Brewer had acted in accord with CHP procedures because Mitchell had refused to return to his car. Brewer’s motion also included excerpts from Mitchell’s deposition testimony in which Mitchell conceded that he had “no evidence” that Brewer had acted out of racial animus, and that Mitchell’s only basis for his race-based claim was his “belief” that Brewer had acted based on race.
In June 2010, Mitchell filed opposition to the summary judgment motion supported by his own declaration. Mitchell’s declaration attested to the following facts:
“2. On October 18, 2006, at approximately 7:30 a.m., I was pulled over by a [CHP] Vehicle. I later discovered that the... driver of the vehicle was a CHP officer named Eric Brewer who was acting within the scope of his duty as [a CHP] officer. Later, during the booking procedure, I heard [Brewer] admit to a fellow officer that he had been on duty for over twenty four (24) hours, and had had no sleep. [¶] ... [¶]
“6. After stopping, I shifted my car in park and got out of my vehicle. I was within 5 feet of the CHP’s vehicle and Officer Brewer got out of his vehicle and walked toward the front of his vehicle, (driver side) and in a very hostile, discourteous and condescending voice said to me ‘Get back in you car’. I have lived in South Central Los Angeles all my life and I have had to observe and have encountered numerous law enforcement agencies and I know when an Officer is treating you as a human being and when an Officer speaks to you as if you were institutionalized in a prison of jail environment. I knew from past experience when I was being victimized by an Officer with a discriminatory attitude. I therefore, very courteously, asked ‘what are the charges?’
“7. My experience with professional and courteous Law Enforcement Officers, allowed me to be able to distinguish the difference between professional law enforcement officers and Officers who display discriminatory attitude such a Officer Brewer who [sic] first words were stated in a disrespectful and hateful voice ‘Get Back Into your Car!’ To which I again asked what did I do. Officer Brewer repeated in the same escalated manner ‘Get Back Into Your Car!’ Meanwhile, Officer Brewer had walked around his vehicle to the passenger side and he had become face to face with me.
“8. I then told Officer Brewer ‘Look I’m going in my pocket to get my license. I pulled out my California Driver’s License and handed it to Officer Brewer. He then looked at my license and then looked at me and then clipped my license to his necktie. He then stated ‘Now Get Back In your Car!’ I again said ‘Officer what did I do?’ Officer Brewer again stated ‘Get Back In your Car!’ I stated ‘Look I surrender’, I then walked over to his patrol car, put both hands on the hood of his vehicle and stood there in a submissive position.
“9. At that time, I was ready to be handcuffed, but rather the officer stated ‘Get Back In your Car!’. [Then said, ] ‘Now What Are The Charges?’ I said I’ll surrender again, I then placed my hands on the hood of the patrol vehicle and Officer Brewer then walked behind me, put both of his hands on my shoulder, one on each shoulder, and pulled me away from his vehicle towards my vehicle and said ‘Now, Get Back Into your Car!’
“10. Confused and befuddled, I said ‘What’s wrong with you.’ Not knowing that he had been up for twenty four (24) hours and perhaps not being rational and professional and his conduct was not understandable. After Officer Brewer manhandled and assaulted me, I requested that he call his supervisor. Instead, Officer Brewer began to unravel his baton. I immediately, asked ‘Are you going to beat me with that.’ Officer Brewer then raveled the baton back up and placed it back in his belt clip-on. He said ‘No, but I’m going to tell you one more time to get back into your car.’ At this time, I really wanted to know why Officer Brewer had stopped me. I informed him that I asked for his super-visor. He then pulled out a can and shook it up then proceeded to spray me in the face with pepper spray which shortened my breathing and for the moment I was trying to survive. Officer Brewer then walked behind me and set his leg in front of me and tripped me to the ground and handcuffed me. After both handcuffs were secured he assisted me in standing up while I was handcuffed; and I started yelling ‘I Can’t breath[e], I can’t breath[e]. Help, Help somebody help.’ He quickly moved me back to the CHP squad car back seat and I still yelled Help! I can’t breath[e]. He said just stand there while I get the water. I stood there while Brewer went to the CHP vehicle trunk and got the water. He returned and poured the water on my face to cool me down.
“11. After backup and the paramedics came, the paramedics had to insist that Officer Brewer take the handcuffs off prior to transporting me to the hospital. The paramedics and Officer Brewer started to argue and the paramedics stated take the handcuffs off and Officer Brewer then took the handcuffs off and took one handcuff and attached it to the gurney.
“12. At no times during this encounter, was my conduct and behavior threatening to Officer Brewer as the following admitted testimony by Officer Brewer... set forth [on pages 71, 74-76, 78-82 of] the Reporter’s Transcript of the criminal proceedings [on the resisting charge] held on May 24, 200[7.]
“13. Officer Brewer walk[ed] over to where I was standing and met me close enough to receive my driver’s license without incident where I ultimately surrendered. [¶] ... [¶]
“15. I have no knowledge about the reason for the enforcement stop because I had not made any maneuvers whereby Officer Brewer could conclude that I had made an unsafe lane change or made any movement which Officer Brewer could have concluded to be illegal. Officer Brewer’s statement of any violation lacks any specificity regarding any alleged violation and I was not cited at the scene, at the booking, in court or at any time thereafter to [the] present of any traffic violation.”
On June 24, 2010, Brewer filed a reply to Mitchell’s opposition, along with evidentiary objections to Mitchell’s declaration. The objections, both broadly and as to specific aspects of Mitchell’s declaration, challenged the declaration in its entirety.
On June 29, 2010, the parties argued the summary judgment motion, and the trial court took the matter under submission. On July 2, 2010, the trial court entered a minute order granting Brewer’s motion for summary judgment. The court’s order states that “all evidentiary objections” filed by Brewer were sustained, and that the moving and opposing papers showed Mitchell had “no evidence of racial motivation” for Brewer’s actions, “an essential element of the cause of action” alleged under Section 1983. The court’s order further states: “Alternatively, the moving and opposing party’s evidence agree that [Mitchell] never complied with the officer’s order to return to his car ... which would be a violation of Vehicle Code section 2800, and a basis for arrest and a reasonable perception of a threat.” On August 9, 2010, the court entered summary judgment in favor of Brewer.
Mitchell filed a timely notice of appeal.
DISCUSSION
I. Triable Issues of Fact
Mitchell contends that the summary judgment in favor of Brewer must be reversed because a review of the record discloses “competing factual showings” on eight facts that are involved in his case. Mitchell’s argument does not persuade us that the trial court’s decision to grant summary judgment is infected with error.
“[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar).) “Once the [movant] has met that burden, the burden shifts to the [other party] to show that a triable issue of one or more material facts exists as to that cause of action....” (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, supra, at p. 850.) The party opposing summary judgment “may not rely upon the mere allegations or denials of its pleadings, ” but rather “shall set forth the specific facts showing that a triable issue of material fact exists....” (§ 437c, subd. (p)(2).) A triable issue of material fact exists where “the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar, supra, at p. 850.) Where summary judgment has been granted, we review the trial court’s ruling de novo. (Id. at p. 860.) We consider all the evidence presented by the parties in connection with the motion (except that which was properly excluded) and all the uncontradicted inferences that the evidence reasonably supports. (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.) We affirm summary judgment where the moving party demonstrates that no triable issue of material fact exists and that it is entitled to judgment as a matter of law. (§ 437c, subd. (c).)
In order to prove a claim under Section 1983, the plaintiff must show that defendant acted under color of law to deprive him of the rights under the law or the United States Constitution. (Vergos v. McNeal (2007) 146 Cal.App.4th 1387, 1402.)
We find Brewer’s evidence was sufficient to shift the burden to Mitchell to show there was a triable issue of fact. These are the eight facts noted in Mitchell’s opening brief for which he claims there is competing evidence: whether Mitchell actually committed a traffic infraction; whether Brewer could see Mitchell; what Brewer initially instructed Mitchell; whether Mitchell exited his car before Brewer exited his car; whether Brewer’s instructions to Mitchell were motivated by discriminatory intent; whether Brewer truly believed his safety was in threat; whether Brewer actually complied with the CHP’s policies; and whether Mitchell actually believed that he was a victim of racial discrimination.
Mitchell presents a passionate argument, but it fails to show any error by the trial court’s ruling because it relies exclusively on passion, without any references to the evidence in the record. Mitchell also does not challenge the trial court’s evidentiary rulings, which effectively removed all opposing evidence from the court’s consideration in addressing Brewer’s summary judgment motion. Starting with the traffic infraction issue, Mitchell acknowledges Brewer’s undisputed material fact that he saw Mitchell violate Vehicle Code section 22107, but Mitchell does not cite any admitted evidence in the record which discloses a competing showing. Instead, Mitchell asks the rhetorical question whether “we are to believe” the officer’s testimony.
Mitchell’s argument regarding Brewer’s view of the driver is similar. Mitchell notes Brewer’s undisputed material fact that he could not see the driver at the time he decided to issue a ticket (the implication being that Brewer did not know the race of the driver). Mitchell then poses another rhetorical question whether “we are expected to take Brewer at his word, just because he says something is so.” Concerning who exited their vehicle first, Mitchell tells us, without reference to any evidence, that Brewer had worked for more than 24 hours, and that this factor had “a direct bearing on his handling of the situation....” All eight facts discussed by Mitchell are presented in a similar context of an absence of references to evidence in the record.
Brewer made an evidentiary showing that he acted appropriately, and not based on race, and Mitchell has not pointed us to evidence disclosing the existence of any triable issues of fact concerning Brewer’s initial showing. Apart from this, the trial court’s evidentiary rulings mean that Brewer’s summary judgment was, for all practical purposes, examined in a context where the officer presented evidence, and there was an opposition, but without any evidence.
Mitchell urges, again without citation to evidence, that he should be permitted to take his case to trial because he has a “knowledge and familiarity with the odious nature exhibited all too often by law enforcement agents during police-citizen interactions, ” the result of “having to survive in an environment where... exposure [to such treatment] is a common occurrence.” Mitchell further tells us that a “jury of [his] peers might very well concluded that his expert testimony [on the subject of police mistreatment] was a more compelling and reasonable explanation for the events of the day, and render a verdict accordingly.” The problem for Mitchell is that we cannot say the trial court improperly foreclosed a trial unless Mitchell shows that he had evidence that got him past a summary judgment motion, thus justifying a trial. Unfortunately for Mitchell, his passion in the righteousness of his claim is not sufficient to show us that he had evidence to get past Brewer’s summary judgment motion.
II. The Standard of Review in the Trial Court
Mitchell contends the summary judgment must be reversed because the trial court “misapplied” the standard governing Brewer’s summary judgment motion. We disagree.
Mitchell is correct that the trial court was required to follow a three-step procedure in ruling on Brewer’s summary judgment motion. It was required to determine: (1) the issues framed by the pleadings; (2) if Brewer met his burden of showing that one or more elements of Mitchell’s cause of action could not be established, or there was a complete defense to the cause of action; and, if so (3) if Mitchell showed a triable issue of material facts existed. (Arciniega v. Bank of San Bernardino (1997) 52 Cal.App.4th 213, 225.) Mitchell argues that the trial court erred in determining that Brewer met his burden. Specifically, Mitchell argues that the officer’s declaration “lacked sufficient foundational facts.” We disagree. Brewer presented his version of the events of October 18, 2006, and no more “foundational” facts were required to shift the burden to Mitchell to show a conflict existed. For the reasons already explained above, we reject Mitchell’s argument that he presented enough evidence to show the existence of triable issues of fact. All of his evidence was rejected, and he does not challenge the trial court’s evidentiary rulings in his opening brief.
III. Credibility
Mitchell contends the summary judgment must be reversed because “credibility is a factual question.” We understand Mitchell to be arguing that the trial court improperly found Brewer to be credible in granting his motion for summary judgment. We disagree.
“If a party is otherwise entitled to a summary judgment pursuant to [the summary judgment statute], summary judgment may not be denied on grounds of credibility or for want of cross-examination of witnesses furnishing affidavits or declarations in support of the summary judgment, except that summary judgment may be denied in the discretion of the court, where the only proof of a material fact offered in support of the summary judgment is an affidavit or declaration made by an individual who was the sole witness to that fact; or where a material fact is an individual’s state of mind, or lack thereof, and that fact is sought to be established solely by the individual’s affirmation thereof.” (Code Civ. Proc., § 437c, subd. (e).)
Even if we accept Mitchell’s unstated but implicit contention that the court had discretion to deny Brewer’s summary judgment motion, this rule, standing alone, does not conversely establish that the trial court erred in deciding to grant summary judgment based on Brewer’s declaration. As the trial court noted, the parties were in agreement that Mitchell got out of his car, and that he did not obey Brewer’s instructions to return to his car. Mitchell did not present any evidence refuting the expert declarations offered by Brewer to the effect that the officer acted properly in response to a driver who would not obey lawful instructions. Mitchell’s credibility argument does not persuade us that the trial court erred in granting the summary judgment motion.
IV. Immunity
Mitchell contends the summary judgment must be reversed because Brewer did not show he was immune from liability. We disagree.
A government official is afforded qualified immunity when he or she acts under an objectively reasonable, even if actually mistaken, belief that his conduct is lawful. (See, e.g., Guerra v. Sutton (9th Cir. 1986) 783 F.2d 1371, 1374.) Here, the parties agreed that Mitchell got out of his car, and that he did not comply with Brewer’s instructions to return to his car. Given this factual foundation, and the expert declarations showing that Brewer acted properly in response to a driver who would not obey lawful instructions, we conclude that Brewer’s initial showing was sufficient to show he was immune, shifting the burden to Mitchell to present some evidence showing the existence of a triable issue of fact. Because Mitchell did not meet his burden, the trial court properly granted summary judgment.
DISPOSITION
The summary judgment entered August 9, 2010, is affirmed. The parties shall bear their own costs on appeal.
We concur: RUBIN, J.FLIER, J.