Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. BCVBS09434, Steve Malone, Judge.
Stanley W. Hodge and Arshak Bartoumian for Plaintiff and Appellant.
Edmund G. Brown, Jr., Attorney General, David S. Chaney, Chief Assistant Attorney General, James M. Schiavenza, Assistant Attorney General, Marsha S. Miller, and Mark A. Brown, Deputy Attorneys General, for Defendants and Respondents.
OPINION
McKINSTER, J.
Plaintiff and appellant Alfonso Valdez was arrested by four California Highway Patrol (CHP) officers after an incident of road rage between him and another motorist. Plaintiff was charged with a public offense based on the incident, and was later acquitted. After his acquittal, plaintiff sued defendant and respondent CHP, and four named CHP officers. Plaintiff appeals after the trial court sustained the demurrer to plaintiff’s second amended complaint without leave to amend. We affirm
FACTS AND PROCEDURAL HISTORY
Because this appeal arises on demurrer, we draw the facts from the applicable operative pleadings.
On January 31, 2004, plaintiff and his wife were driving northbound on the Interstate 15 Freeway north of Barstow. Another northbound vehicle, a pickup truck driven by Garret Tom, with Karen Tom as a passenger, swerved toward plaintiff’s car. Plaintiff himself had to swerve to avoid a collision.
After the near collision, the Tom vehicle followed plaintiff’s car; Garret Tom screamed at plaintiff and his wife and threatened them.
Plaintiff, an off-duty police officer, took out his gun and displayed it in an effort to dissuade Tom from further aggressive acts.
Ultimately, plaintiff was arrested by four CHP officers for allegedly brandishing a firearm in violation of Penal Code section 417. Plaintiff alleged that the officers used such force that he suffered nerve damage to his wrists and arms.
Plaintiff was charged by information with various criminal violations. Plaintiff was acquitted on or about April 18, 2006. After his acquittal, plaintiff filed a civil action against the CHP, the four officers, and the Toms.
The first cause of action alleged violation of civil rights against the individual officers. The second cause of action alleged false imprisonment against all defendants. The third cause of action alleged assault against the Toms. The fourth cause of action asserted intentional inflection of emotional distress against all defendants.
The CHP and the officers demurred to the complaint. Plaintiff responded by requesting 30 days leave to amend. Plaintiff filed an amended complaint alleging causes of action for violation of civil rights (against all defendants), false imprisonment (against all defendants), assault (against the Toms), intentional infliction of emotional distress (against all defendants), and malicious prosecution (against the Toms).
The CHP and the officers demurred to the amended complaint and moved to dismiss. The court sustained the demurrer as to all three causes of action alleged against the CHP and the officers: violation of civil rights, false imprisonment, and intentional infliction of emotional distress. The court denied leave to amend in full as to the false imprisonment cause of action. The court did permit leave to amend as to the civil rights and intentional infliction of emotional distress causes of action in part, only as to the allegations of excessive force. The court sustained the demurrer without leave to the extent each of those causes of action were based upon alleged false arrest.
Plaintiff filed a second amended complaint. It alleged causes of action for violation of civil rights based upon excessive force (against all defendants), assault (against the Toms), intentional infliction of emotional distress (against all defendants), and malicious prosecution (against the Toms).
The CHP and the officers again demurred. This time, the court sustained the CHP’s and the officer’s demurrer without leave to amend. The court dismissed the action as to them with prejudice.
Plaintiff appeals the ensuing judgment.
ANALYSIS
A. Standard of review
The trial court sustained demurrers without leave to amend. On appeal, we apply two separate standards of review. First, we review de novo the determination whether the pleading alleges facts sufficient to state a cause of action. (McCall v. PacifiCare of Cal., Inc. (2001) 25 Cal.4th 412, 415.) Second, we review the determination to deny leave to amend for abuse of discretion. (Berry v. American Express Publishing, Inc. (2007) 147 Cal.App.4th 224, 228.)
B. The trial court properly sustained the demurrers
The trial court sustained demurrers without leave to amend as to portions of the amended complaint and also as to the second amended complaint. These are therefore the operative pleadings.
A demurrer admits all material facts in the pleadings, but not mere contentions, deductions or conclusions of law. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967; Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
The causes of action at issue in the amended complaint were violation of civil rights based upon false arrest, false imprisonment, and intentional infliction of emotional distress resulting from the alleged false arrest. The causes of action at issue in the second amended complaint were violation of civil rights based upon excessive force and intentional infliction of emotional distress arising from use of excessive force.
We are thus called upon to determine whether the actual allegations contained in the amended complaint or the second amended complaint are sufficient to state a proper cause of action.
1. The amended complaint does not state a cause of action for false arrest or false imprisonment.
The amended complaint alleged a cause of action for false imprisonment. Plaintiff alleged only that he was “wrongfully arrested by the Defendants without reasonable cause. Plaintiff [w]as further wrongfully arrested and imprisoned by Defendants and their agents without reasonable cause. Plaintiff was put in custody and imprisoned by the Defendant officers after the incident described . . . . He was put into handcuffs and forced to be refrained [sic] from being free and falsely imprisoned.”
These allegations consist exclusively of plaintiff’s contentions and conclusions, and are devoid of any facts to support them. The only available factual allegations were incorporated by reference from other portions of the amended complaint. The paragraphs alleged that Garret Tom swerved his vehicle toward plaintiff’s car forcing plaintiff to swerve to avoid a collision. Thereafter, Tom followed plaintiff’s car, screamed at plaintiff and his wife, and threatened them.
Plaintiff, a peace officer, was authorized to carry a concealed weapon. As a peace officer, plaintiff had the right to arrest anyone whom plaintiff had probable cause to believe had committed a crime in plaintiff’s presence. Plaintiff believed Tom had committed a crime (assault with his vehicle) in plaintiff’s presence.
In response to Tom’s swerving toward plaintiff’s car, following plaintiff, and screaming threats at plaintiff, plaintiff exhibited his duty weapon to Tom, the driver of the other vehicle. Plaintiff alleged that he exhibited the gun “in an attempt to dissuade Mr. Tom from further assaults.”
The amended complaint contains no factual allegations describing what happened next, i.e., how plaintiff came to be “detained” by the defendant CHP officers. Nevertheless, at some point, plaintiff was detained. He alleges that he told the CHP officers that he was a police officer for the City of Delano. Plaintiff alleges that he “explained to the aforesaid Defendants that he had exhibited his firearm after the aforesaid crimes had been committed in his presence.”
The CHP officers arrested plaintiff on suspicion of the crime of brandishing a firearm.
Although plaintiff asserted that his arrest was without probable cause, that allegation is flatly contradicted by his plain admission. He stated both in the pleading and to the CHP officers at the scene, that he had, in fact, displayed his gun to the Toms. Although plaintiff makes much of the facts that he was a police officer, that he had the right to carry a weapon, and that he had the right to arrest a person who committed a crime in his presence, singularly absent from plaintiff’s pleading is any suggestion that he attempted to arrest Tom for the crimes allegedly committed in plaintiff’s presence, or that he drew his weapon and showed it for that purpose. To the contrary, plaintiff asserts a different purpose: he thought the gun might “dissuade” Tom from any further misconduct. Also conspicuously absent from the factual allegations is any indication that plaintiff identified himself to Tom as a police officer, such that Tom would have any reason to know that plaintiff was a police officer. He does not allege, for example, that he was wearing a police uniform or driving a police car. Rather, plaintiff apparently was driving a personal, private vehicle.
According to plaintiff’s own allegations, the CHP officers were presented with plaintiff’s frank admission of brandishing his gun. This admission furnished ample reasonable and probable cause for plaintiff’s arrest. Penal Code section 417 proscribes, generally, except in self-defense, the drawing or exhibiting of a firearm or other deadly weapon, “in a rude, angry, or threatening manner.”
Penal Code section 417.3 similarly prohibits “draw[ing] or exhibit[ing] any firearm, whether loaded or unloaded, in a threatening manner” against another person “who is an occupant of a motor vehicle proceeding on a public street or highway.”
Plaintiff’s amended complaint failed to state a cause of action for false arrest or false imprisonment as there was ample probable cause to believe he had committed an offense. The trial court properly sustained the demurrer as to the false arrest or false imprisonment cause of action.
2. The amended complaint did not allege facts to show a violation of civil rights based on false arrest or imprisonment
A claim under Title 42 United States Code section 1983 (§ 1983) must demonstrate that the conduct complained of deprived the plaintiff of a right, privilege, or immunity secured by the United States Constitution, and that the acts complained of were committed by a person acting under color of state law.
To the extent plaintiff’s section 1983 claim was predicated on alleged false arrest and/or false imprisonment, the trial court properly sustained the demurrer for the reasons already stated. Although the CHP officers unquestionably acted under the color of law, plaintiff admitted brandishing a firearm. The officers had probable cause to arrest plaintiff for a public offense. An arrest based upon probable cause does not violate any constitutional right. (Pen. Code, § 836.)
The parties devote considerable argument to questions whether, for example, plaintiff is estopped from asserting a lack of probable cause for his arrest by virtue of the magistrate’s finding in the criminal case that there was probable cause to bind plaintiff over for trial. (See, e.g., McCutchen v. City of Montclair (1999) 73 Cal.App.4th 1138 [a finding of probable cause in a criminal court is collateral estoppel in a later civil proceeding].)
Plaintiff’s acquittal of the charges is irrelevant to the issue whether there was probable cause for the arrest. (Coverstone v. Davies (1952) 38 Cal.2d 315, 319.)
Plaintiff argues that the arrest was not supported by probable cause because the officers did not properly conduct an investigation and question other witnesses. (Johanson v. Department of Motor Vehicles (1995) 36 Cal.App.4th 1209; Arpin v. Santa Clara Valley Transportation Agency (9th Cir. 2001) 261 F.3d 912.) The amended complaint alleged, for example, that the Toms lied to the officers by saying that plaintiff had brandished a weapon without justification. The amended complaint clearly demonstrates, however, that the officers did properly investigate. They did not rely solely on the Toms’ accusations. Rather, they questioned plaintiff and obtained his statement, wherein he admitted brandishing a gun. In addition, the cited cases are inapposite, as they relate to a warrantless arrest for a misdemeanor, which requires an officer to have reasonable cause to believe an offense was committed in his or her presence. (Johanson, at p. 1216; Arpin, at p. 920.) Here, the CHP officers arrested plaintiff for a felony offense. Felony arrests are permitted even when the offense was not committed in the officer’s presence as long as the officer has probable cause to believe that the person arrested has committed a felony, “whether or not a felony, in fact, has been committed.” (Pen. Code, § 836, subd. (a)(3).)
3. The amended complaint did not allege facts to support a cause of action for intentional infliction of emotional distress or false imprisonment
A cause of action for intentional infliction of emotional distress must show that the defendant’s conduct was “beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” (Rest.2d Torts, § 46, com. d, p. 73; see also Ross v. Creel Printing & Publishing Co. (2002) 100 Cal.App.4th 736, 744.)
To the extent plaintiff’s claim for intentional infliction of emotional distress was based upon the purported false arrest or false imprisonment, the claim must fail. The CHP officers had probable cause to arrest plaintiff for a felony public offense. Although plaintiff may have felt personal outrage, a lawful arrest supported by probable cause is not “beyond all possible bounds of decency” or “intolerable in a civilized community.” A civilized community authorizes and expects its law enforcement officers to effect arrests when there is probable cause to believe that someone has committed a felony offense.
4. The second amended complaint failed to state facts sufficient to allege a cause of action for violation of civil rights based on excessive force
“Any action brought under section 1983 must involve the deprivation of a right specifically arising under either the Constitution or a federal statute creating such right. [Citation.]” (Walker v. Benter (C.D. Cal. 1999) 41 F.Supp.2d 1067, 1074 (Walker).)
The situation in Walker parallels that here: the plaintiffs were driving in a vehicle along the freeway when they were stopped by CHP officers. The officers had received a report that the passenger had pointed a gun at another motorist. The CHP officers pulled over the plaintiffs’ car, and effected a “felony stop,” ordering the plaintiffs to show their hands, get out of the car and walk backwards toward the officers. The officers handcuffed the plaintiffs, frisked them, and made them sit in the back of a police car. (Walker, supra, 41 F.Supp.2d at pp. 1069-1070.)
In Walker, the felony charges alleged were ultimately dismissed by the trial court. The court determined, as we have here, that there was probable cause for the arrest. (Walker, supra,41 F.Supp.2d at p. 1074.) The only remaining theory under section 1983 was that the officers used excessive force. (Walker, at p. 1074.)
“The Supreme Court established in Graham v. Connor [(1989)] 490 U.S. 386 that excessive force cases involving non-prisoners are subject to the ‘objective reasonableness’ standard of the Fourth Amendment. ‘All claims that law enforcement officers have used excessive force—deadly or not—in the course of an arrest, investigatory stop, or other “seizure” of a free citizen should be analyzed under the Fourth Amendment and its “reasonableness” standard, rather than under a “substantive due process” approach.’ [Citation.]” (Walker, supra,41 F.Supp.2d at p. 1074.)
In Walker, the evidence showed that officers had received a report that one of the plaintiffs brandished a gun at another motorist. The plaintiffs were stopped. One of the officers had his gun drawn and ordered the plaintiffs, at gunpoint, to get out of the car, turn around and walk backward. Another named officer grabbed one of the plaintiff’s hands, twisted his arms behind his back, and handcuffed him. The officer grabbed the plaintiff by the arm, roughly, and walked him to a patrol car. The plaintiff was pushed into the backseat and forced to sit in an awkward position. The patrol car’s windows were rolled up and the interior of the car became extremely hot. (Walker, supra, 41 F.Supp.2d at p. 1074.)
The Walker court held that, “[t]his evidence is insufficient, as a matter of law, to establish a Fourth Amendment excessive force claim.” (Walker, supra, 41 F.Supp.2d at p. 1074.) Pointing guns at arrestees, ordering them out of cars, having them walk backward, yelling to other officers, handcuffing, frisking, and placing arrestees into closed patrol cars does not constitute excessive force. (Id. at pp. 1074-1075.) The plaintiff’s assertion that the handcuffing procedure resulted in a torn tendon was not supported by any medical evidence showing objective injury, diagnosis, or treatment. There was no showing of egregious force or substantial injury. (Id. at p. 1075.)
Although Walker arose in the procedural context of summary judgment and not demurrer, the situations of the plaintiffs are similar. In Walker, the plaintiff provided evidence of the actions of the accused officers. That evidence was insufficient, as a matter of law, to sustain a claim of excessive force. Here, plaintiff has alleged no specific acts by any of the four officers. Plaintiff alleges no facts to state what force was applied, by whom, in what manner, or under what circumstances. The second amended complaint was bereft of any factual allegations whatsoever, but consisted solely of conclusional statements, i.e., that the officers (generically) were “extremely brutal” in handling plaintiff. While a demurrer admits all material facts properly pled, it does not admit mere conclusions, contentions or assertions. (See Blank v. Kirwan, supra, 39 Cal.3d 311, 318.)
The trial court properly sustained the demurrer to the second amended complaint’s cause of action for violation of civil rights, based on claims of excessive force. The second amended complaint failed to include any factual allegations to support such a cause of action.
5. The second amended complaint failed to state facts to support a claim of intentional infliction of emotional distress based on excessive force
The intentional infliction of emotional distress cause of action in the second amended complaint was likewise predicated on plaintiff’s claims of excessive force. Like the section 1983 cause of action, the intentional infliction of emotional distress cause of action was devoid of any specific factual allegations about the conduct of any of the officers. As a matter of law, such deficient allegations were insufficient to establish an intentional infliction of emotional distress claim based on excessive force—plaintiff failed to show any particular conduct—and certainly not any extreme or outrageous conduct.
C. The trial court did not abuse its discretion in denying leave to amend
Plaintiff’s brief on appeal addresses no argument to the issue whether the trial court abused its discretion in denying leave to further amend the operative pleadings.
“Ordinarily it is an abuse of discretion to sustain a general demurrer to a complaint without leave to amend if there is a reasonable possibility [that] the defect in the complaint can be cured by amendment.” (Smith v. County of Kern (1993) 20 Cal.App.4th 1826, 1830.) On the other hand, the plaintiff bears the burden on appeal of showing how he or she can amend the pleading, and how the amendment will change the legal effect of the pleading. (Everett v. State Farm General Insurance Co. (2008) 162 Cal.App.4th 649, 655-656.)
Plaintiff has had two opportunities to amend his complaint, yet he has failed to set forth any additional facts to support his claims. In the absence of any argument or demonstration on appeal of any proposed amendment, we have no basis upon which to conclude that the trial court abused its discretion in denying leave to amend.
DISPOSITION
The trial court properly sustained the demurrers below without leave to amend. The judgment is affirmed. Costs on appeal are awarded to defendants and respondents.
We concur: HOLLENHORST, Acting P. J., MILLER, J.