Opinion
B156163.
7-15-2003
YEI-HWEI TONG, Plaintiff and Appellant, v. FRED SANCHEZ, et al., Defendants and Respondents.
Yei-Hwei Tong and Shong-Ching Tong, in pro per. Alvarez-Glasman & Colvin, Robert P. Sievers for Defendants and Respondents City of Pomona, Rob Baker, Barry Dolgovine, Manuel Ramos, Fred Sanchez, Jassie Hooks, Clara S. Piedra, and Judy Ramsey.
INTRODUCTION
Plaintiffs and appellants Yei-Hwei Tong (Tong) and Shong-Ching Tong appeal from the trial courts sustaining in part a demurrer without leave to amend and order dismissing certain defendants. This court has dismissed Shong-Ching Tongs appeal. Tong alleged that she was placed under a citizens arrest following an altercation at a laundromat. She sued, among others, the City of Pomona, the Pomona police officers who placed her under arrest, and other Pomona Police Department employees, and she alleged various federal claims under Title 42 United States Code sections 1981, 1983, 1985, and 1988 and state law claims for emotional distress and obstruction of justice. Although Tong brings this appeal as to all defendants named in her complaint, we hold that the appeal concerns only those defendants dismissed from the action: Fred Sanchez (Sanchez), Jassie Hooks (Hooks), Clara Piedra (Piedra), and Judy Ramsey (Ramsey). We further hold that Sanchez should not have been dismissed from the action, but otherwise affirm the order of dismissal as to Hooks, Piedra, and Ramsey.
The appeal was dismissed pursuant to Code of Civil Procedure section 391.7. Shong-Ching Tong was not present at the incident; instead, the complaint merely alleged that he dropped off Yei-Hwei Tong at the laundromat. He was not arrested or present when his wife was arrested.
All further undesignated statutory references are to Title 42 United States Code.
BACKGROUND
Tongs complaint, the demurrer, and ruling
Tong made the following allegations in her complaint. While Tong was at Lucys Laundry in Pomona, Sharon Martin assaulted her with "obscene language and gestures." Elisha Thomas, the laundromats manager, did not try to stop Sharon Martins "assaults and batteries" and tried to assault Tong with a stick. Elisha Thomas called the police, and Officers Barry Dolgovine, Rob Baker, and Manuel Ramos arrived. Elisha Thomas placed Tong under a citizens arrest. Officer Ramos handcuffed Tong, injuring her hand, wrist, and arm, and "pushed" her outside and into his car.
Hooks, a Pomona Police Department employee "who was not at the scene," fraudulently issued a notice to appear to Tong. Officer Ramos falsely and fraudulently made a police report. Ramsey, a senior records supervisor at the Pomona Police Department, and Piedra, a records supervisor at Pomona Police Department, falsely and fraudulently told Tong that they would submit Tongs "discovery requests" to the Los Angeles County District Attorneys Office. The "PPD Defendants," defined as Officers Baker, Dolgovine, and Ramos and Ramsey, Piedra, Hooks and Sanchez, Pomonas Chief of Police, sold Tongs arrest information to various people.
Sanchez was the commanding officer of the other defendants and was "responsible for the training, supervision, and conduct of" the other defendants. "He is also responsible by law for enforcing the regulations of the Pomona Police Department, and for ensuring that Pomona police officers and PPD employees obey the laws of the State of California, and the United States." Plaintiffs sent letters to Sanchez inquiring about the status of notices to appear, but he ignored the letters. Sanchez also sent a notice to appear to Tong. Sanchez, to conceal and "cover-up defendant Ramos use of excessive force" and Tongs false arrest and imprisonment, "failed to investigate . . . false accusations and falsification of police report, defendant Hooks malicious issue of the Notice to Appear, and defendants, Ramsey and Piedra, obstruction of justice as stated above."
All defendants, including Sanchez, were acting within the course and scope of their "office and/or employment, and under color of law, and pursuant to their authority as police officers, employees and public officials." "In doing the acts and in failing and omitting to act as hereafter described, defendants Baker, Dolgovine, Ramos, Ramsey, Piedra, and Hooks were acting with the implied and actual consent and permission of defendants Sanchez and Pomona."
Contemporaneous with and subsequent to the incident, "the City of Pomona and the PPD implemented, maintained and tolerated the following deficient polices, practices and customs: [P] (i) hiring and/or failing to assign, supervise and control police officers and employees known, or who reasonably should have been known to have used excessive or unreasonable force in the past; [P] (ii) failing properly to discipline police officers or employees who had engaged in the use of excessive force or unreasonable force or unreasonable violence; [P] (iii) failing to conduct adequate investigation of reported police officers misconduct and to manitan [sic] an organized and effective system for reporting and investigating incidents of alleged police officer brutality and abuse; [P] (iv) discouraging the public from reporting police officers or employees misconduct and otherwise acting to conceal or cover-up police culpability; [P] (v) improperly training police officers with respect to, inter alia, proper self-defense techniques and the proper handling of situations where use of excessive or unreasonable force by police officers could reasonably be expected to occur; [P] (vi) fostering a code of silence among the ranks of the PPD to such extent that police officers or employees misconduct was not reported by other officer or employee."
"The PPD Defendants, together with various other unnamed officials and supervisory personnel of the City of Pomona and the PPD had either actual or constructive knowledge of the deficient policies, practices and customs . . . acquiesced in and condoned such policies, practices and customs; and were deliberately indifferent to their foreseeable effects and consequences with respect to the Constitutional rights of plaintiffs and others similarly situated. The PPD defendants were motivated by "class-based animus, characterized by invidious anti-Asian hatred."
Tong, who is Asian American, alleged, among others, the following causes of action: violation of section 1981 against all defendants; violation of section 1983 against all defendants except Elisha Thomas, Sharon Martin, and Lucys; violation of section 1985, subdivision (3); violation of section 1988; obstruction of justice against the PPD defendants; intentional infliction of emotional distress against all defendants; and negligent infliction of emotional distress against all defendants. All defendants were sued in their individual and official capacities.
The cause of action for a violation of section 1985, subdivision (3) merely references "the defendants," and therefore it is uncertain against whom the cause of action is alleged.
The trial court sustained defendants demurrer without leave to amend as to all causes of action except the second cause of action for violation of section 1983. The trial court sustained the demurrer with leave to amend as to the second cause of action and noted that although the cause of action was identified as "false arrest" it appeared to be a section 1983 action, and that the pleading was uncertain. The trial court thereafter entered an order of dismissal only as to Sanchez, Piedra, Hooks, and Ramsey. Therefore, only the City of Pomona and Officers Baker, Dolgovine, and Ramos remained as defendants to the remaining second cause of action for violation of section 1983.
The City of Pomona filed a demurrer, and the City of Pomona, Officers Baker, Dolgovine, Ramos, and Sanchez, Hooks, Ramsey, and Piedra also filed a demurrer. The Pomona Police Department filed a joinder in the City of Pomonas demurrer. The Pomona Police Department, however, was not named as a defendant in the action.
To maintain an action under section 1983, a plaintiff must allege that someone acting under color of state law violated their constitutional or pleading. The court struck all causes of action except the second cause of action ( § 1983), and overruled the demurrer as to that cause of action.
DISCUSSION
I. Appealability
Only the dismissals of defendants Sanchez, Hooks, Piedra, and Ramsey are appealable. Because the other defendants-City of Pomona and Officers Dolgovine, Baker, and Ramos-are parties to the still pending second cause of action for violation of section 1983, Tong may not appeal the trial courts order sustaining the demurrer without leave to amend to the other causes of action as to them. (See North American Chemical Co. v. Superior Court (1997) 59 Cal.App.4th 764, 773 [trial courts order sustaining a demurrer only to some causes of action is not appealable].)
II. Standard of Review
Upon review of a judgment following a demurrer sustained without leave to amend, we review the sufficiency of the complaint and treat as true "all material facts properly pleaded." (Blank v. Kirwan (1985) 39 Cal.3d 311, 318, 216 Cal. Rptr. 718, 703 P.2d 58.) "On appeal from a judgment of dismissal entered after a demurrer has been sustained without leave to amend, unless failure to grant leave to amend was an abuse of discretion, the appellate court must affirm the judgment if it is correct on any theory. [Citations.] If there is a reasonable possibility that the defect in a complaint can be cured by amendment, it is an abuse of discretion to sustain a demurrer without leave to amend. [Citation.] The burden is on the plaintiff, however, to demonstrate the manner in which the complaint might be amended. [Citation.]" (Hendy v. Losse (1991) 54 Cal.3d 723, 742, 819 P.2d 1; Goodman v. Kennedy (1976) 18 Cal.3d 335, 349, 134 Cal. Rptr. 375, 556 P.2d 737.)
III. Pleading Requirements-Civil Rights Acts
A California court has applied federal law to determine whether a complaint states a cause of action under the federal Civil Rights Act, although acknowledging that prior courts have assumed that California pleading laws should apply. (Bach v. County of Butte (1983) 147 Cal. App. 3d 554, 560-563, 195 Cal. Rptr. 268.) We follow federal notice pleading requirements, although we do not believe the distinction is dispositive in this case. Whether state or federal law applies, the outcome in this action would be the same. To state a claim against a municipality under section 1983 (to which section 1981 actions are analogized), the United States Supreme Court has emphasized that the "liberal system of notice pleading" under the Federal Rules requires only "a short and plain statement of the claim showing that the pleader is entitled to relief." (Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit (1993) 507 U.S. 163, 168, 122 L. Ed. 2d 517, 113 S. Ct. 1160 [leaving open the issue of whether there are stricter pleading requirements in civil rights claims against individuals]; see also 5 Wright and Miller, Federal Practice and Procedure, Civil 2d 2003 pocket part, p. 63.) "Nonetheless, complaints based on civil rights statutes must include specific allegations of facts showing a violation of rights instead of a litany of general conclusions that shock but have no meaning. [Citation.]" (Waldron v. Rotzler (N.D.N.Y. 1994) 862 F. Supp. 763, 768 (Waldron ).)
Also, the Ninth Circuit has required a heightened pleading standard in section 1983 actions when the defendant is entitled to assert a qualified immunity defense and when defendants knowledge or intent is an element of the constitutional tort. (Lee v. City of Los Angeles (9th Cir. 2001) 250 F.3d 668, 679, fn. 6.) "When plaintiffs sue public officials in their individual capacity under § 1983, . . . plaintiffs must state in their complaint nonconclusory allegations setting forth evidence of unlawful intent. The allegations of facts must be specific and concrete enough to enable the defendants to prepare a response, and where appropriate, a motion for summary judgment based on qualified immunity." (Ibid.)
To state a cause of action under section 1981, the plaintiff must allege facts to support the following three elements: (1) the plaintiff is the member of a racial minority; (2) the defendant had an intent to discriminate on the basis of race; and (3) the discrimination concerned one or more of the activities enumerated in the statute. (Mian v. Donaldson, Lufkin & Jenrette Sec. Corp. (2d Cir. 1993) 7 F.3d 1085, 1087.) "To state a claim under § 1981 the plaintiff must plead facts which establish that defendants actions were racially motivated and purposefully discriminatory." (Waldron, supra, 862 F. Supp. at p. 768.)
Section 1981 provides as follows: "(a) All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other. (b) For purposes of this section, the term make and enforce contracts includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship. (c) The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law."
A. Sanchez
Applying federal statutory rights. A plaintiff may establish liability under section 1983 by showing, for example, either that the individual who committed the constitutional tort was an official with final policymaking authority and that the challenged action itself thus constituted an act of official governmental policy or by showing that an official with final policymaking authority ratified a subordinates unconstitutional decision or action. (Gillette v. Delmore (9th Cir. 1992) 979 F.2d 1342, 1346; see also Larez v. City of Los Angeles (9th Cir. 1991) 946 F.2d 630, 645-647 [Chief of Police could be found to be an official policymaker].)
To state a section 1985 conspiracy claim, "the plaintiff must allege with specificity facts sufficient to show or raise a plausible inference of: [P] (1) a conspiracy between two or more persons for the purpose of depriving any person or class of persons of equal protection of the laws, or of equal privileges and immunities under the law, and [P] (2) an act by one of the conspirators in furtherance of the object of the conspiracy whereby another person was [P] (a) injured, or [P] (b) deprived of exercising any right or privilege of a citizen of the United States." (Garg v. Albany Indus. Dev. Agency (N.D.N.Y. 1995) 899 F. Supp. 961, 970 (Garg). The plaintiff must also allege that the "conspiracy was motivated by `some racial or perhaps otherwise class-based invidious discriminatory animus. [Citations.]" (Ibid.) The allegations of conspiracy must be specific and nonconclusory. (Taylor v. Mitzel (1978) 82 Cal. App. 3d 665, 673-675, 147 Cal. Rptr. 323 (Taylor); Birnbaum v. Trussell (2nd Cir. 1965) 347 F.2d 86, 89.)
Section 1985, subdivision 3, provides as follows: "(3) Depriving persons of rights or privileges [P] If two or more persons in any State or Territory conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; or for the purpose of preventing or hindering the constituted authorities of any State or Territory from giving or securing to all persons within such State or Territory the equal protection of the laws; or if two or more persons conspire to prevent by force, intimidation, or threat, any citizen who is lawfully entitled to vote, from giving his support or advocacy in a legal manner, toward or in favor of the election of any lawfully qualified person as an elector for President or Vice President, or as a Member of Congress of the United States; or to injure any citizen in person or property on account of such support or advocacy; in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators."
Finally, section 1988 does not provide a substantive cause of action. It merely provides that a prevailing party in an action under, among others, sections 1981, 1983, and 1985 may recover its attorneys fees and expert costs. Therefore, the trial court properly sustained without leave to amend the demurrer to Tongs cause of action under section 1988.
Section 1988 provides, in pertinent part, as follows: "(b) Attorneys fees [P] In any action or proceeding to enforce a provision of sections 1981, 1981a, 1982, 1983, 1985, and 1986 of this title . ., the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorneys fee as part of the costs, . . . [P] (c) Expert fees [P] In awarding an attorneys fee under subsection (b) of this section in any action or proceeding to enforce a provision of section 1981 or 1981a of this title, the court, in its discretion, may include expert fees as part of the attorneys fee."
Tongs first amended complaint, defendants demurrer, and ruling
Tong realleged all of her purported causes of action from the first complaint and as to her federal claims under sections 1981, 1985, and 1988 and her emotional distress claims her allegations were against "all defendants except defendants PPD and [City of] Pomona." The "PPD defendants" were again defined as Officers Baker, Dolgovine, and Ramos, and Sanchez, Hooks, Piedra, and Ramsey. The City of Pomona and Officers Baker, Dolgovine, and Ramos demurred to the amended the above law to the complaints allegations against Sanchez, Pomonas Chief of Police, we hold that the order of dismissal should be reversed as to him.
Sanchez was named as a defendant in the second cause of action brought under section 1983. The trial court permitted the second cause of action to proceed against the City of Pomona and Officers Dolgovine, Baker, and Ramos because the complaint stated sufficient facts to give rise to a claim arising out of excessive force, but dismissed the action as to Sanchez. Tong, however, alleged that Sanchez covered up and failed to investigate the alleged excessive force and was involved in policies that led to such conduct. Such allegations are sufficient to state a claim under section 1983. (See Larez v. City of Los Angeles, supra, 946 F.2d 630; Garcia v. Senkowski (N.D.N.Y. 1996) 919 F. Supp. 609, 616.) Thus, the trial court erred in dismissing Sanchez from the second cause of action.
There are insufficient allegations suggesting that Sanchez was involved in any discrimination or conspiracy so as to be liable under sections 1981 or 1985. The complaint merely makes a conclusory allegation that all defendants were somehow motivated by "anti-Asian hatred," but there are absolutely no factual allegations to support such a conclusion and nothing specific to implicate Sanchez. (Waldron, supra, 862 F. Supp. at p. 768.)
Similarly, the only allegation of conspiracy is that "defendants, and two or more of them, conspired for the purpose of" falsely arresting and imprisoning Tong, maliciously refusing Tongs discovery requests, denying Tong her right to use the laundromat, and depriving her of equal protection and due process of law. Absent from the complaint, however, are any facts as to which defendants conspired and how they did so. Instead, the allegations are nonspecific and conclusory, and therefore are insufficient to state a cause of action for violation of section 1985, subdivision (3). (Garg, supra, 899 F. Supp. at p. 970; Taylor, supra, 82 Cal. App. 3d at pp. 673-675.)
B. Piedra and Ramsey
The only allegations against Ramsey and Piedra are that they falsely said they would submit Tongs "informal discovery requests" to the Los Angeles District Attorneys Office. There is no allegation that Ramsey and Piedra, who are merely employees of the police department, had any obligation to send discovery requests to the District Attorney or that Tong could not have done so herself. These bare allegations, which demonstrate no illegal conduct on the part of either Ramsey or Piedra, therefore are not sufficient to state a claim of violation of Tongs civil rights against these defendants. (Waldron, supra, 862 F. Supp. at p. 768; Garg, supra, 899 F. Supp. at p. 967; Taylor, supra, 82 Cal. App. 3d at pp. 673-675.)
C. Hooks
The only allegation against Hooks was that she falsely and fraudulently sent a notice to appear to Tong telling her to appear in court, but that when she appeared the case had not been "submitted." But in view of Tongs arrest, Hooks was required by law to send the notice. Specifically, a notice to appear in court shall be sent to any person who is arrested for committing a misdemeanor and who has been released from custody. (Pen. Code, § 853.6.) There is no specific factual allegation that Hooks was involved in any of the alleged acts that comprise a violation of the civil rights claims (i.e., the excessive force allegations); instead, the complaint concedes that Hooks was not present when Tong was placed under a citizens arrest. Therefore, all federal law claims alleged against Hooks were properly dismissed.
IV. The State Law Claims
Tong alleged three state law based causes of action against Hooks, Piedra, and Ramsey: obstruction of justice, intentional infliction of emotional distress, and negligent infliction of emotional distress. We hold that Tong did not state facts sufficient to constitute these causes of action.
As stated above, the only allegations against Hooks, Piedra, and Ramsey are that they either falsely and fraudulently sent Tong a notice to appear or failed to forward her discovery requests to the district attorney. As discussed above, these allegations do not give rise to any actionable conduct. Nonetheless, even assuming that these acts could even give rise to any cause of action, Hooks, Piedra, and Ramsey are not liable by virtue of Government Code section 821.6.
Government Code section 821.6 provides as follows: "A public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause." When the essence of a plaintiffs complaint is that public employees and agencies maliciously prosecuted an action against the plaintiff, the public employees and agencies are immune from suit under section 821.6. (Scannell v. County of Riverside (1984) 152 Cal. App. 3d 596, 609, 199 Cal. Rptr. 644 ["To allow an intentional infliction of emotional distress cause of action in this situation would exalt form and disregard substance"]; Kemmerer v. County of Fresno (1988) 200 Cal. App. 3d 1426, 1440, 246 Cal. Rptr. 609 [immunity applied to action for intentional infliction of emotional distress]; Kaplan v. LaBarbera (1997) 58 Cal.App.4th 175, 180 [immunity applies to ministerial acts].)
Sending a notice to appear after Tong was placed under a citizens arrest and not forwarding discovery requests to the proper entity are actions that are precluded under section 821.6. Therefore, even assuming Tong stated a cause of action arising out of these actions, Hooks, Piedra, and Ramsey are immune from liability.
DISPOSITION
The judgment is reversed as to defendant and respondent Fred Sanchez as he was improperly dismissed from the second cause of action. We affirm the judgment as to defendants and respondents Jassie Hooks, Clara Piedra, and Judy Ramsey. Each party to bear his or her own costs on appeal.
We concur: GRIGNON, Acting P.J., and ARMSTRONG, J.