Opinion
B218948
08-23-2011
DAVID VENEGAS et al., Plaintiffs and Appellants, v. COUNTY OF LOS ANGELES et al., Defendants and Respondents.
Robert Mann and Donald W. Cook for Plaintiffs and Appellants David Venegas and Beatriz Salazar Venegas. Lawrence Beach Allen & Choi, David D. Lawrence, Jin S. Choi and Scott E. Caron, for Defendants and Respondents County of Los Angeles, Los Angeles County Sheriff's Department and Robert Harris.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BC207136)
APPEAL from a judgment of the Superior Court of Los Angeles County, John A. Torribio, Judge. Reversed.
Robert Mann and Donald W. Cook for Plaintiffs and Appellants David Venegas and Beatriz Salazar Venegas.
Lawrence Beach Allen & Choi, David D. Lawrence, Jin S. Choi and Scott E. Caron, for Defendants and Respondents County of Los Angeles, Los Angeles County Sheriff's Department and Robert Harris.
David Venegas, his wife, Beatriz Salazar Venegas, and their minor son Vincent filed an action against the County of Los Angeles and the Los Angeles County Sheriff's Department, the Cities of Vernon and El Segundo, and several named and unnamed individual law enforcement officers, including Sheriff Lee Baca, alleging violations of federal and state civil rights laws and state tort law arising out of the June 24, 1998 detention/arrest of David and Beatriz by members of the Task Force for Regional Auto Theft Prevention (TRAP), the search of the Venegas home by sheriff's deputies and the subsequent incarceration of David for three days.
We refer to David and Beatriz Venegas by their first names for purposes of clarity and convenience. (See Cruz v. Superior Court (2004) 120 Cal.App.4th 175, 188, fn. 13.)
The third amended complaint alleged federal claims under title 42 United States Code section 1983 (42 U.S.C. section 1983), violations of Civil Code sections 51.7 and 52.1 and common law claims for false arrest and imprisonment, battery and negligence.
Through a series of trial court rulings and appellate decisions over the last decade,the Venegases' claims of civil rights violations have been whittled away. This appeal concerns their remaining claim under Civil Code section 52.1 (section 52.1), which provides an independent remedy for damages, equitable relief and attorney fees against "a person or persons, whether or not acting under color of law, [who] interferes by threats, intimidation, or coercion, with the exercise or enjoyment by any individual or individuals of rights secured by the Constitution or laws of the United States, or of the rights secured by the Constitution or laws of this state . . . ." The Venegases contend the trial court erred in granting the County defendants' summary judgment motion on the ground the Venegases had failed to demonstrate a triable issue of material fact that any interference with their constitutional rights had been caused by threats, intimidation or coercion. We agree and reverse.
See Venegas v. County of Los Angeles (2002) 105 Cal.App.4th 636, superseded by grant of review April 16, 2003 (S113301), reversed in part and affirmed in part by Venegas v. County of Los Angeles (2004) 32 Cal.4th 820, 843, on remand to this court, Venegas v. County of Los Angeles (July 28, 2004, B148398) (nonpub. opn.), on appeal after remand to the superior court, Venegas v. County of Los Angeles (2007) 153 Cal.App.4th 1230.
The County of Los Angeles, the Los Angeles County Sheriff's Department and Sheriff's Deputy Robert Harris, collectively referred to as the County defendants, are the only remaining defendants. The Venegases' son settled his claims against the County, and his claims against all other defendants were dismissed with prejudice.
FACTUAL AND PROCEDURAL BACKGROUND
The facts before the trial court on summary judgment were largely developed during the trial of the Venegases' claims under 42 U.S.C. section 1983 in January 2001. Our description of that evidence is based in large part on our decision in Venegas v. County of Los Angeles, supra, 153 Cal.App.4th at pages 1232 through 1236.
1. The June 24, 1998 Incident
a. The initial detention of David and Beatriz
TRAP was an interagency task force run by the Los Angeles County Sheriff's Department to facilitate multi-jurisdictional car theft investigations. Defendant Steven Wiles, a police officer for the City of Vernon, was assigned to the southeast TRAP. At approximately 7:00 p.m. on June 24, 1998, Wiles was in a staging area in Bellflower with other TRAP members preparing to execute a search warrant for a nearby residence belonging to Ricardo Venegas, the older brother of David. Wiles had information Ricardo was involved in switching vehicle identification numbers (VINs) on stolen cars (particularly white pickup trucks) and fraudulently obtaining titles from the California Department of Motor Vehicles (DMV) in Temecula. Wiles had a photograph of Ricardo and a description of him as 5 feet, 11 inches tall, weighing 210 pounds.
While the TRAP team was waiting in the staging area, a Mercury Cougar with no license plates drove past. The driver was a woman, later identified as Beatriz; her male passenger, later identified as David, appeared to some TRAP officers to resemble Ricardo. The TRAP officers followed the car until it stopped at a gas station about a block away. According to Wiles, Los Angeles County Sheriff's Deputies Michael Gray and Robert Harris were the first officers to arrive at the gas station and contact David.
Beatriz went inside the gas station to pay while David stood outside by the car to pump the gas. Two TRAP cars pulled into the gas station and blocked the Cougar. Four officers in casual clothes, but with badges around their necks, approached David and asked him who he was and whether he knew a Ricardo Venegas. David told them Ricardo was his brother. Other officers approached Beatriz when she came out of the gas station building and detained her apart from David.
According to Wiles, David became irate at the officers' questioning, using profanities and inquiring why he was not free to go. Because of David's belligerent attitude, he was handcuffed for officer safety. Gray admitted being at the gas station and participating in the decision to detain David.
Wiles spoke with David while other officers searched the Cougar for its VIN. In response to Wiles's questions about the Cougar, David told him he had just bought the car in Los Angeles; it was a salvaged vehicle; he and Beatriz had gone to the DMV and were told they had to go to the California Highway Patrol to have a VIN issued. Los Angeles Police Officer Peloquin, Wiles's partner on the TRAP team, spent about 10 minutes unsuccessfully searching for a public VIN on the Cougar. He did, however, inform Wiles he found a partial VIN on the car's engine. Meanwhile, another officer searched the glove box and under the seats of the car. This officer found an odometer disclosure statement with a VIN number consistent with the partial VIN on the car's engine, a bill of sale and a blank application for registration. The bill of sale and odometer disclosure statement listed Beatriz as the buyer and gave the date of sale as two weeks earlier.
After the officers learned the car had no public VIN, they decided to impound it to determine whether it was stolen. According to Peloquin, the fact the partial VIN on the engine matched the VIN as stated on the odometer disclosure statement was not conclusive evidence the car had not been stolen because the engine and transmission could have been replaced. David admitted to Wiles he knew the public VIN was missing. He told Wiles the person who sold him the car had told him it was a salvaged vehicle. Wiles testified at that point he did not know whether the paperwork found in the vehicle was fraudulent. Although Beatriz produced a California driver's license, David had no driver's license or California identification card in his possession. Beatriz showed the officers David's employee badge, which included his photograph and identified him as David Venegas; but some of the officers believed it did not positively identify David as not being Ricardo. Wiles, however, admitted he knew within minutes David, who was only five feet, 6 inches tall, was not Ricardo.
b. The search of the Venegas home
David or Beatriz told the officers David had his identification at their home, a short distance from the gas station. Wiles asked David to sign an entry and search waiver form to allow the officers to go to his home to retrieve his identification. David initially refused to consent, but apparently thereafter orally agreed the officers could accompany Beatriz to their home for that limited purpose. David testified he and Beatriz were told the officers would not search the home.
According to Wiles it was necessary to go to David's home to obtain his identification because a positive identification "is to be made through a valid license where we can run the name through dispatch and find out who he is." Wiles testified neither he nor any of the other officers processed David's name through the computer system, even though, he conceded, they could have done so and found out whether the person described in the system fit the description of the person they had in front of them.
Wiles remained at the gas station for about 10 to 15 minutes before his immediate supervisor told him to leave to serve the search warrant at Ricardo's home. At that point the officers placed David, still handcuffed, in the back of Harris's van. Wiles admitted that Beatriz was not free to leave while at the gas station.
According to El Segundo Police Officer Rudy Kerkhof, also assigned to the TRAP team, someone told him the Venegases had consented to a search of their home. He testified it was possible he was the one who obtained Beatriz's signature on a written entry and search waiver form, which had been filled in by another officer and handed to him. The waiver form provided in part Beatriz "hereby grant[s] full and unconditional authority to the Los Angeles County Sheriff's Department to enter those [above described] premises to conduct a search for identification—C.D.L.—and to conduct any related investigation in any related criminal or non-criminal law enforcement matter." (Italics added.) This statement was preprinted on the form except for the italicized portion, which was handwritten by Harris on blank lines contained on the form. Kerkhof drove Beatriz to her home. According to Beatriz, the officers said she could not go into her home alone to retrieve her husband's identification.
After arriving at her home with Kerkhof, Beatriz obtained David's California identification card from their bedroom and brought it along with David's wallet to the officer in her living room. The officer took David's wallet from her and searched it. Two other police officers arrived at the home. Beatriz sat with Kerkhof on the couch in the living room while the other officers searched the entire house including Vincent's bedroom. While David was sitting in the van with Harris, Harris received a radio call stating the officers had verified David's identification.
About an hour after Wiles left the gas station, he received a radio call from Harris informing him David's identification had been verified and that David was on felony probation for drug dealing. Wiles decided at that point to arrest David for knowingly possessing a vehicle from which the VIN had been removed (Veh. Code, § 10751, subd. (a)), a misdemeanor committed in his presence, and for violating his probation.
Vehicle Code section 10751 provides in part, "(a) No person shall knowingly buy, sell, offer for sale, receive, or have in his or her possession, any vehicle . . . from which any serial or identification number, including, but not limited to, any number used for registration purposes, that is affixed by the manufacturer to the vehicle or component part . . . has been removed, defaced, altered, or destroyed, unless the vehicle or component part has attached thereto an identification number assigned or approved by the department in lieu of the manufacturer's number."
According to Kerkhof, he had been in the Venegas home about 10 minutes when Harris arrived with David. Harris brought David into the house and had him sit on the couch with Beatriz and Kerkhof. Beatriz was crying. For 30 minutes Harris participated in the search of the home with two other officers. Neither David nor Beatriz was able to identify the two officers who searched their home with Harris. According to David, the officers searched the home like they were looking for drugs. Beatriz testified she did not question the officers or protest the search because she was scared.
c. David's incarceration
Harris took David to the Lakewood Sheriff's station, where he was booked into custody at 8:55 p.m. on the Vehicle Code and probation violation charges. Beatriz was detained for about two hours, but was not charged with any offense.
The next day, Gray partially dismantled the Cougar by removing six bolts and found a confidential full VIN, which matched the VIN on the documents found in the glove box. Given this information, Wiles directed David be released from custody. Nonetheless, David was not released until two days later. No charges were ever filed against David arising out of the incident.
2. Legal Proceedings
a. The initial proceedings on the section 52.1 claim
On March 16, 1999 the Venegases sued the County of Los Angeles and the Los Angeles County Sheriff's Department, Sheriff Lee Baca, his predecessor Sherman Block (who was Sheriff at the time of the incident) and three sheriff's deputies, Harris, Gray and Thomas Jimenez. The suit also named the City of Vernon, the Vernon Police Department and Officer Wiles, and the City of El Segundo, whose police officer, Rudy Kerkhof, was part of the TRAP team but not named as a defendant. The complaint alleged causes of action for violations of the Venegases' federal and state civil rights, as well as various state law torts, arising out of the detention/arrest of David and Beatriz by members of TRAP, the search of the Venegas home and David's incarceration for three days.
A first amended complaint was filed on June 23, 1999; a second amended complaint in October 1999; and the third amended complaint, the final, operative pleading, in August 2000.
Before trial of the federal civil rights claims in January 2001, the trial court sustained the defendants' demurrers to the section 52.1 claim on the ground the statute required the Venegases to allege defendants had acted with discriminatory animus. On appeal following a nonsuit on the federal claims, we reversed that ruling (Venegas v. County of Los Angeles (2002) 105 Cal.App.4th 636, superseded by grant of review April 16, 2003 (S113301) (Venegas I).) The Supreme Court affirmed that portion of our decision, explaining, "Civil Code section 52.1 does not extend to all ordinary tort actions because its provisions are limited to threats, intimidation, or coercion that interferes with a constitutional or statutory right. . . . [W]e need not decide here whether section 52.1 affords protections to every tort claimant, for plaintiffs in this case have alleged unconstitutional search and seizure violations extending far beyond ordinary tort claims. All we decide here is that, in pursuing relief for those constitutional violations under section 52.1, plaintiffs need not allege that defendants acted with discriminatory animus or intent, so long as those acts were accompanied by the requisite threats, intimidation, or coercion. The Court of Appeal was correct in holding that plaintiffs adequately stated a cause of action under section 52.1." (Venegas v. County of Los Angeles (2004) 32 Cal.4th 820, 843 (Venegas II).)
The Supreme Court reversed our decision in Venegas I with respect to Sheriff Baca's potential liability in a federal civil rights action, holding the Sheriff acting in the course of a criminal investigation was an agent of the State, not the County, and therefore immune from liability under the Eleventh Amendment to the United States Constitution. (Venegas II, supra, 32 Cal.4th at p. 839.)
b. Further proceedings in this court after remand from the Supreme Court
On remand from the Supreme Court, we concluded that the initial detention and questioning of David and Beatriz and the search and impounding of their car did not violate their federal constitutional rights but also held the officers had "possibly" violated the Venegases' Fourth Amendment rights during the course of the search of their home. (Venegas v. County of Los Angeles (July 28, 2004, B148398) (nonpub. opn.) (Venegas III).)Nonetheless, because the individual defendants were entitled to qualified immunity on the Venegases' federal civil rights claims under 42 U.S.C. section 1983 under the standard articulated by the Supreme Court in Venegas II, we affirmed the trial court's dismissal of those claims and remanded the case to the trial court for further proceedings on the state law claims.
The case returned to this court after the trial court granted summary judgment on the state law claims in favor of all defendants. The County defendants, including Deputy Harris, argued in part our previous holding that the officers enjoyed qualified immunity on the federal civil rights claims should be extended to the section 52.1 claim. In a nonpublished opinion issued on December 6, 2006 we explained it was unnecessary to reach that issue because the Venegases had failed to present evidence their rights had been violated by the officers' use of threats, intimidation or coercion, an essential element of their section 52.1 claim. We affirmed summary adjudication on all claims other than those for negligence.
We granted the Venegases' petition for rehearing on January 4, 2007, thereby vacating our December 6, 2006 opinion. (See Cal. Rules of Court, rule 8.268(d).) On July 31, 2007 we issued a new opinion and reinstated the Venegases' section 52.1 claim against the County defendants. (Venegas v. County of Los Angeles (2007) 153 Cal.App.4th 1230 (Venegas IV).) As we explained, the section 52.1 claim had been dismissed before trial on the federal claims and, accordingly, "'threats, intimidation or coercion' were not issues at the trial." (Venegas IV, at p. 1247.) Moreover, the County defendants had not moved for summary judgment on the ground the Venegases could not prove their rights had been violated by the officers' threats, intimidation or coercion, thus preventing the Venegases from responding to that argument. (Ibid.)
Nonetheless, we affirmed summary judgment on the section 52.1 claim against Officer Wiles and the City of Vernon on the ground Wiles had not violated any of the Venegases' state constitutional rights: Wiles did not participate in the search of the Venegases' home and was not involved in obtaining Beatriz's alleged consent for a broader search. (Venegas IV, supra, 153 Cal.App.4th at pp. 1247-1248.)
Addressing the issue of qualified immunity previously unnecessary to our decision, we held this form of immunity was not available to government defendants sued under section 52.1. Accordingly, we reversed the order granting summary adjudication to the County defendants on the section 52.1 claim and remanded the matter for further proceedings. (Venegas IV, supra, 153 Cal.App.4th at pp. 1246-1247.)
c. The trial court's new order granting summary adjudication
On remand the County defendants renewed their motion for summary judgment, contending the Venegases could not prove they had been subjected to threats, intimidation or coercion as required by section 52.1. The trial court issued a tentative decision to deny the motion. Following supplemental briefing and after providing the Venegases with an additional opportunity to submit evidence on the issue, however, the court granted the motion. To establish a triable issue of material fact, the court ruled, the Venegases were required to produce evidence of threats, intimidation or coercion beyond that inherent in the arrest or prolonged detention itself. According to the court, "[Section] 52.1 implies egregious conduct bringing into play the additional sanctions provided by [section] 52.1" Otherwise, the court explained, every false arrest gives rise to a claim under section 52.1. The court also agreed with the County defendants that this Court had signaled in its December 6, 2006 vacated opinion that the Venegases lacked the requisite evidence Deputy Harris or other officers had used threats, intimidation or coercion to accomplish the search of the Venegas home.
d. Dismissal of the remaining negligence claim
The trial court's rulings left the Venegases with only a claim for negligence against the County defendants. After we denied their petition for a writ of mandamus to reinstate the section 52.1 claim, the Venegases dismissed their negligence claim without prejudice and proceeded with this appeal. Absent a dismissal of the claim with prejudice, however, there was no final determination of the action on the merits and, consequently, no appealable order. (See, e.g., Don Jose's Restaurant, Inc. v. Truck Ins. Exchange (1997) 53 Cal.App.4th 115; Morehart v. County of Santa Barbara (1994) 7 Cal.4th 725, 743 ["an appeal cannot be taken from a judgment that fails to complete the disposition of all the causes of action between the parties even if the causes of action disposed of by the judgment have been ordered to be tried separately, or may be characterized as 'separate and independent' from those remaining"].) In response to our letter advising the parties of this issue, the Venegases elected to dismiss the negligence claim against the County defendants with prejudice. (See Sullivan v. Delta Air Lines, Inc. (1997) 15 Cal.4th 288, 308-309 ["[w]hen a party expressly waives on appeal the right to litigate an unresolved cause of action that deprived the judgment as entered of finality, the appellate court may give effect to the waiver by amending the judgment to reflect a dismissal of that cause of action with prejudice"]; Tudor Ranches, Inc. v. State Compensation Ins. Fund (1998) 65 Cal.App.4th 1422, 1430 [deeming unspecified dismissal to be with prejudice to ensure appealability].)
CONTENTIONS
The Venegases contend triable issues of material fact exist whether the County defendants interfered with their Fourth Amendment rights through threats, intimidation or coercion either as a result of the law-of-the-case doctrine or because they presented sufficient evidence on that issue in opposition to the County defendants' motion. They also contend the County is liable for all acts of TRAP officers, known and unknown, not only those officers actually employed by the Los Angeles County Sheriff's Department.
The County defendants contend summary judgment on the section 52.1 claim was properly granted because there is no evidence of threats, intimidation or coercion, as this Court recognized in its vacated December 6, 2006 opinion, and no evidence of any underlying constitutional violation. Moreover, the County defendants argue, a violation of section 52.1 requires a showing of some threat, intimidation or coercion that is separate and distinct from the alleged constitutional violation itself. Finally, the County defendants contend they are immune from suit under Government Code section 820.2.
DISCUSSION
1. Standard of Review
A motion for summary judgment is properly granted only when "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).) We review a grant of summary judgment de novo and decide independently whether the facts not subject to triable dispute warrant judgment for the moving party as a matter of law. (Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1348.) We view the evidence in the light most favorable to the opposing party, liberally construing the opposing party's evidence and strictly scrutinizing the moving party's. (O'Riordan v. Federal Kemper Life Assurance Co. (2005) 36 Cal.4th 281, 284; accord, Callahan v. Gibson, Dunn & Crutcher LLP (2011) 194 Cal.App.4th 557, 566.)
2. The Supreme Court's Holding the Venegases Had Stated a Cause of Action Under Section 52.1 Is Not Dispositive of the Summary Judgment Motion
Under the law of the case doctrine, "a matter adjudicated on a prior appeal normally will not be relitigated on a subsequent appeal in the same case." (Davies v. Krasna (1975) 14 Cal.3d 502, 507; People v. Barragan (2004) 32 Cal.4th 236, 246 ["when an appellate court '"states in its opinion a principle or rule of law necessary to the decision, that principle or rule becomes the law of the case and must be adhered to throughout [the case's] subsequent progress, both in the lower court and upon subsequent appeal"'"].) The doctrine applies to decisions of intermediate appellate courts as well as courts of last resort (People v. Shuey (1975) 13 Cal.3d 835, 841) and "even if the court that issued the opinion becomes convinced in a subsequent consideration that the former opinion is erroneous." (Santa Clarita Organization for Planning the Environment v. County of Los Angeles (2007) 157 Cal.App.4th 149, 156; see Morohoshi v. Pacific Home (2004) 34 Cal.4th 482, 491 ["'it is only when the former rule is deemed erroneous that the doctrine of law of the case becomes at all important'"].) The doctrine promotes finality by preventing relitigation of issues previously decided. (George Arakelian Farms, Inc. v. Agricultural Labor Relations Bd. (1989) 49 Cal.3d 1279, 1291; see Searle v. Allstate Life Ins. Co. (1985) 38 Cal.3d 425, 434.)
The Venegases contend the Supreme Court's holding in Venegas II that they had adequately stated a cause of action under section 52.1—a decision they acknowledge evaluated only the legal sufficiency of the allegations in their complaint—when considered with our finding in Venegas III that the evidence of Beatriz's prolonged detention and the subsequent search of the Venegas home outside the limited scope of her consent could support a determination the couple's constitutional rights had been violated (Venegas III, supra, B148398; see Venegas IV, supra, 153 Cal.App.4th at p. 1240) required the trial court to deny the County defendants' motion under the law-of-the-case doctrine. Even though these decisions establish the Venegases' constitutional rights may have been violated, however, they do not address whether any interference with their rights was effected by the use of threats, intimidation or coercion, an essential element of the section 52.1 claim. (Venegas II, supra, 32 Cal.4th at p. 843; see Austin B. v. Escondido Union School Dist. (2007) 149 Cal.App.4th 860, 883.) Accordingly, the doctrine of law of the case does not fully resolve the question before us.
3. Disputed Issues of Material Fact Exist as to Whether the Venegases' Rights Were Violated and Whether Those Violations Resulted from Threats, Intimidation or Coercion
Section 52.1, subdivision (a), provides that if a person interferes, or attempts to interfere, by threats, intimidation or coercion, with the exercise or enjoyment of the constitutional or statutory rights of any individual, the Attorney General or any district or city attorney may bring a civil action for equitable or injunctive relief. Subdivision (b) creates a private right of action for individuals "whose exercise or enjoyment of rights secured by the Constitution or laws of the United States, or of rights secured by the Constitution or laws of this state, has been interfered with, or attempted to be interfered with, as described in subdivision (a)." Subdivision (g) states that an action brought under section 52.1 is "independent of any other action, remedy, or procedure that may be available to an aggrieved individual under any other provision of law." (See Venegas II, supra, 32 Cal.4th at p. 841.) "The essence of a [section 52.1] claim is that the defendant, by the specified improper means (i.e., 'threats, intimidation, or coercion'), tried to or did prevent the plaintiff from doing something he or she had the right to do under the law or to force the plaintiff to do something that he or she was not required to do under the law." (Austin B. v. Escondido Union School Dist., supra, 149 Cal.App.4th at p. 883, citing Jones v. Kmart Corp. (1998) 17 Cal.4th 329, 334.)
a. The County defendants' and trial court's reliance on our vacated December 6, 2006 opinion was improper
In the trial court and again on appeal the County defendants have argued this court already determined the Venegases' rights were not violated as a result of threats, intimidation or coercion, improperly citing to and quoting from our December 6, 2006 opinion, which was vacated by our subsequent grant of the Venegases' petition for rehearing. (See Cal. Rules of Court, rule 8.268(d) ["[a]n order granting a rehearing vacates the decision and any opinion filed in the case and sets the cause at large in the Court of Appeal"].) The trial court, apparently following the County defendants' lead, similarly cited to our vacated opinion, explaining its ruling the Venegases' evidence was insufficient to create a triable issue of material fact with respect to the section 52.1 cause of action "is consistent with the Appellate Court findings" in the December 6, 2006 opinion. Such use of the December 6, 2006 opinion is improper. By operation of law that opinion was vacated and is a nullity; it cannot be cited for any purpose.
In an attempt to justify their use of our vacated decision, the County defendants cite case authority for the proposition that an appellate opinion superseded by a grant of rehearing remains the law of the case on all points other than those resolved in the subsequent opinion. (One of the cases upon which the County defendants rely, Buell-Wilson v. Ford Motor Co. (2008) 160 Cal.App.4th 1107, was itself depublished as the result of a grant of review by the California Supreme Court, and is therefore not properly cited.) Whatever significance this principle may have in other contexts, here our subsequent opinion, Venegas IV, supra, 153 Cal.App.4th 1230, expressly addressed the issue of threats, intimidation or coercion and held it was not properly before us because it had not been part of the motion for summary adjudication in the trial court.
As we explained in Venegas IV, supra, 153 Cal.App.4th at page 1247, we granted rehearing not only because issues related to section 52.1 had not been tried with the federal civil rights claims in 2001 but also because the County defendants had not moved for summary judgment on the issue of threats, intimidation or coercion. Thus, our insistence that neither the County defendants nor the trial court rely on the vacated December 6, 2006 opinion is not a mere "technicality" or procedural defect as the County defendants suggest. Because the issue of threats, intimidation or coercion had not been raised in the motion for summary judgment then before us, the Venegases had no opportunity to respond to the contention there was no evidence to support that element of their section 52.1 claim. To decide the issue without giving them the opportunity to do so would compromise any notion of fairness and raise serious due process questions. (See Cruz v. Superior Court (2004) 120 Cal.App.4th 175, 191; Rose v. Superior Court (2008) 81 Cal.App.4th 564, 572.)
b. Triable issues of fact exist as to whether the Venegases' rights were violated
As discussed, in Venegas III we concluded the evidence of Beatriz's prolonged detention and the subsequent search of the Venegas home outside the limited scope of her consent could support a determination the couple's constitutional rights had been violated. (Venegas III, supra, B148398; see Venegas IV, supra, 153 Cal.App.4th at p. 1240.) In other words, under the facts elicited at the 2001 trial on the federal civil rights claims, a jury could reasonably conclude the Venegases' Fourth Amendment rights had been violated. That finding is law of the case and may not be challenged in this appeal.
c. Triable issues of fact exist whether threats, intimidation or coercion were used to interfere with the Venegases' enjoyment of their Fourth Amendment rights
The Supreme Court in Venegas II held a cause of action under section 52.1 was stated by allegations of unconstitutional search and seizure violations accompanied by threats, intimidation or coercion. (Venegas II, supra, 32 Cal.4th at p. 843.) As Justice Baxter explained in his less-than-enthusiastic concurrence in this portion of the majority's opinion, "Pragmatically speaking, the limitation in section 52.1 that the right being interfered with under section 52.1 be a right guaranteed by any state or federal law or constitutional provision is hardly a limitation at all. And although the proscribed conduct is further delineated by the requirement that it be delivered in the form of a threat, intimidation, or coercion, it should not be difficult to frame many, if not most, asserted violations of any state or federal statutory or constitutional right, including mere technical statutory violations, as incorporating a threatening, coercive, or intimidating verbal or written component." (Id. at p. 851 (conc. opn. of Baxter, J.).)
Justice Baxter agreed, under the unambiguous language of the statute, there was no requirement the plaintiffs allege that defendants had acted with an intent to discriminate. However, as he explained in his separate concurring opinion, he believed the amendment eliminating the requirement of discriminatory animus may have inadvertently expanded the scope of the statutory remedies beyond what was actually intended and suggested the Legislature would be well advised to reexamine the mater. (See Venegas II, supra, 32 Cal.4th at p. 844 (conc. opn. of Baxter, J.).)
Notwithstanding that relatively clear statement of this element of a section 52.1 claim—the violation of rights must be accompanied or delivered by threats, intimidation or coercion—the County defendants argue a plaintiff may not prevail on a cause of action under section 52.1 absent evidence the defendant committed a threatening, coercive or intimidating act that resulted in a violation of the plaintiff's rights separate and distinct from the threatening, intimidating or coercive act itself. To the extent the County defendants simply contend not every constitutional violation will support a section 52.1 cause of action, they are correct. For example, a warrantless search of a home without probable cause when none of the residents is present, standing alone, lacks the requisite use of threat or force against an individual. At the other end of the spectrum, the use of threats or intimidation to prevent an individual from exercising his or her right to vote plainly falls within the scope of section 52.1. But as defined in Venegas II, section 52.1 also encompasses unconstitutional searches or detentions effected by the use of coercion or intimidation, that is, constitutional violations in which the threat, coercion or intimidation is an integral part of the violation itself.
A detention or arrest, of course, unlike the hypothetical search of a vacant house, necessarily involves some use of law enforcement's coercive power. No California authority addresses the question whether that alone is sufficient for purposes of section 52.1, as the Venegases contend, or whether something more is required, as the trial court ruled in granting the summary judgment motion. Several federal district court decisions, however, have addressed this issue.
In Gant v. County of Los Angeles (2011) 765 F.Supp.2d 1238, a case cited by the County defendants, several plaintiffs alleged federal and state constitutional violations arising from their arrests on warrants intended for different people. Acknowledging the lack of California case law, the court invoked a Massachusetts decision (Longval v. Commissioner of Correction (Mass. 1989) 535 N.E.2d 588) because section 52.1 had been modeled on the Massachusetts Civil Rights Act of 1979. (See Jones v. Kmart Corp., supra, 17 Cal.4th at p. 335; Gant, at p. 1253.) In Longval the Massachusetts Supreme Judicial Court held a prisoner's rights under the Act were not violated when he was unlawfully transferred to an administrative segregation unit in another prison without a hearing. (Longval, at p. 590.) As the Massachusetts court explained, "'[a] direct violation of a person's rights does not by itself involve threats, intimidation, or coercion and thus does not implicate the Act.' [Citation.] . . . '[W]e see no coercion, within the meaning of the . . . Act, simply from the use of force by prison officials, authorized to use force, in order to compel a prisoner to do something he would not willingly do, even if it turns out that the official had no lawful right to compel the prisoner to take that action.'" (Id. at p. 593, quoted in Gant, at p. 1253.) The Gant court adopted this analysis and rejected the section 52.1 claims of the wrongfully arrested plaintiffs: "[A] wrongful arrest and detention, without more, cannot constitute 'force, intimidation, or coercion' for purposes of section 52.1." (Gant, at pp. 1253-1254.) "[S]ection 52.1 requires a showing of coercion independent from the coercion inherent in a wrongful detention itself." (Id. at p. 1258.) A similar analysis was also used to reject section 52.1 claims in Justin v. City and County of San Francisco (N.D. Cal. 2008) 2008 U.S.Dist.Lexis 36468, Rodriguez v. City of Fresno (E.D.Cal. 2011) 2011 U.S.Dist.Lexis 51945, and Lanier v. City of Fresno (E.D.Cal. 2011) 2011 U.S.Dist.Lexis 4631.
In Cole v. Doe 1 thru 2 Officers of the City of Emeryville Police Dept. (N.D.Cal. 2005) 387 F.Supp.2d 1084, on the other hand, the court held the "[u]se of law enforcement authority to effectuate a stop [and] detention . . . can constitute interference by 'threat, intimidation, or coercion' if the officer lacks probable cause . . . ." (Id. at p. 1103.)
We need not decide here whether the inherently coercive nature of an unlawful detention or arrest, without more, can support a section 52.1 cause of action, however; for the evidence presented in opposition to the County defendants' motion is sufficient to create a triable issue whether the search of the Venegas home was accompanied by threats, intimidation or coercion. (See Venegas II, supra, 32 Cal.4th at p. 843; see also Richardson v. City of Antioch (N.D.Cal. 2010) 722 F.Supp.2d 1133, 1147 [unconstitutional entry and arrest formed basis for § 52.1 violation; "test is whether a reasonable person, standing in the shoes of the plaintiff, would have been intimidated by the actions of the [officers] and have perceived a threat of violence"]; Uganda Knapps v. City of Oakland (N.D.Cal. 2009) 647 F.Supp.2d 1129, 1168 [evidence that excessive force was used in connection with Fourth Amendment violation sufficient to establish violation of § 52.1].)
As we have previously held, David's original arrest was justified by his refusal to cooperate with the TRAP officers, who, we determined, had probable cause to detain the Venegases and to search the car. (Venegas III, supra, B148398; see Venegas IV, supra, 153 Cal.App.4th at pp. 1238-1239.) However, at some point that probable cause eroded, and a factual issue exists whether the officers' interference with the Fourth Amendment rights of the Venegases was based on their reasonable beliefs that a crime had been committed or that Beatriz had consented to the search. While the testimony of the officers, including Deputy Harris, suggests each believed someone else had made a determination that the search was justified and that Beatriz's consent had been properly obtained, a jury would not be unjustified in concluding the officers exercised their authority with indifference to the legal niceties of consent or the impact of their conduct on Beatriz. There is evidence Beatriz signed the consent form only because she had been detained herself (armed officers advised her she was not free to go) and then told her, in effect, David would not be released unless she consented to the search. In addition, the search was conducted by two officers while two other officers stood guard over Beatriz and David. Not surprisingly, Beatriz, who was crying during the search of her home, testified she was scared and did not protest the intrusive nature of the search for that reason. Viewing this evidence in the light most favorable to the Venegases, as we must on appeal of an order granting summary judgment (O'Riordan v. Federal Kemper Life Assurance Co., supra, 36 Cal.4th at p. 284), there is a triable issue not only whether the search of the Venegas home was unconstitutional but also whether that search was accompanied by threats, coercion or intimidation. (See Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839 ["'[a]ny doubts about the propriety of summary judgment . . . are generally resolved against granting the motion, because that allows the future development of the case and avoids errors'"].)
4. The County Is Potentially Liable for the Acts of All TRAP Officers
a. The County defendants are not immune from liability under Government Code section 820.2
The County defendants also moved for summary judgment on the ground they are immune from suit under Government Code section 820.2, which states: "Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused." The statute was intended to restate the common law immunity for discretionary acts within the scope of public employment. (Caldwell v. Montoya (1995) 10 Cal.4th 972, 980; accord, Gillan v. City of San Marino (2007) 147 Cal.App.4th 1033, 1050-1051 (Gillan).)
Government Code section 815.2, subdivision (b), which extends the immunity provided by Government Code section 820.2 to the public entity whose employee has been sued, states, "Except as otherwise provided by statute, a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability."
Johnson v. State of California (1968) 69 Cal.2d 782, 793, the leading case interpreting Government section 820.2, held that "discretionary act immunity applies only to 'basic policy decisions.'" In Johnson, a government official placed a "'16 year old boy with homicidal tendencies'" in Mrs. Johnson's home as a foster child and failed to warn her of the child's "'dangerous propensities,'" even though the placement officer had notice of the danger. After five days in Mrs. Johnson's home, the boy assaulted and injured her. (Johnson, at pp. 784-785.) Mrs. Johnson sued the State, alleging the State "'[should] have told me I was getting a boy with a criminal and delinquent background.'" (Id. at p. 785, fn. 1.) The trial court granted summary judgment in favor of the State, on the ground the placement officer's decision whether to warn of the boy's potentially dangerous propensities was a "discretionary act" protected by section 820.2. (Id. at p. 786.)
The Supreme Court reversed. In construing the scope of section 820.2 immunity, the Court held "[a] semantic inquiry into the meaning of 'discretionary' will not suffice as a criterion for interpreting section 820.2." (Johnson v. State of California, supra, 69 Cal.2d at p. 787, italics omitted.) The Court instead analyzed the policy underlying a grant of immunity to determine what conduct should be protected by section 820.2. "'Since obviously no mechanical separation of all activities in which public officials may engage as being either discretionary or ministerial is possible, the determination of the category into which a particular activity falls should be guided by the purpose of the discretionary immunity doctrine.'" (Johnson, at p. 790.)
The Court held section 820.2 provides immunity for "basic policy decisions," but not "for the ministerial implementation of that basic policy." (Johnson v. State of California, supra, 69 Cal.2d at p. 796.) The Court explained this distinction might also be characterized as "between the 'planning' and 'operational' levels of decision-making." (Id. at p. 794.) It noted "[a]ny wider judicial review . . . would place the court in the unseemly position of determining the propriety of decisions expressly entrusted to a coordinate branch of government." (Id. at p. 793.) Using this analysis the Court held the decision to place the boy in Johnson's home was a "basic policy decision," but the decision whether to warn her of his violent propensities was ministerial. (Id. at p. 786.) "[A]lthough a basic policy decision (such as standards for parole) may be discretionary and hence warrant governmental immunity, subsequent ministerial actions in the implementation of that basic decision still must face case-by-case adjudication on the question of negligence." (Id. at p. 797.)
Applying the Johnson analysis to determine whether Government Code section 820.2 provided immunity for a section 52.1 claim arising from a false arrest, Division Three of this court in Gillan explained, "'[a] "workable definition" of immune discretionary acts draws the line between "planning" and "operational" functions of government. [Citation.] Immunity is reserved for those "basic policy decisions [which have] . . . been [expressly] committed to coordinate branches of government," and as to which judicial interference would thus be "unseemly." [Citation.] Such "areas of quasi-legislative policy-making . . . are sufficiently sensitive" [citation] to call for judicial abstention from interference that "might even in the first instance affect the coordinate body's decision-making process."'" (Gillan, supra, 147 Cal.App.4th at pp. 1050-1051.) Because the wrongful decision of a police officer to arrest the accused defendant "was not a basic policy decision, but only an operational decision by the police purporting to apply the law," the court concluded the immunity provided by Government Code section 820.2 did not apply. (Gillan, at p. 1051; see Venegas IV, supra, 153 Cal.App.4th at p. 1243 [acknowledging rule stated in Gillan].)
The actions of the officers in this case were plainly operational and not discretionary within the purview of Government Code section 820.2. Accordingly, the County defendants are not entitled to immunity under this section.
b. The County remains liable for the actions of its officers even if the officers are individually found not liable under section 52.1
The County does not dispute it is liable under section 52.1 if any of its officers, including officers detailed from a neighboring police force but acting under County direction, are found to have violated this section. The County does appear to assume, however, judgment in favor of Deputy Harris, the remaining individual defendant in the case, would necessarily absolve the County of liability. That contention is inconsistent with established law.
To date the individual officers named in the action, other than Harris, have been dismissed because of the inability of the Venegases to identify who actually directed their prolonged detention and arrest and authorized the search to extend beyond the limited consent obtained from Beatriz. At trial, each officer testified to the effect that he was just following orders and that some other officer told him the search (and prolonged detention of Beatriz) was authorized. At this juncture, now 13 years past the date of the incident, the Venegases have no real hope of discovering any additional evidence disclosing which officer or officers improperly exercised his or their authority.
Under these circumstances the County may be held liable for the improper actions, if any, of the unidentified officers, as our colleagues in Division Five of this court recognized in Perez v. City of Huntington Park (1992) 7 Cal.App.4th 817. Affirming a judgment entered after trial against the city defendant although its individual employees had been found not liable, the Perez court held, "[e]ven where the plaintiff names and joins a particular employee and the judgment is for that employee, a simultaneous judgment against the employer will be upheld if the evidence supports the conclusion that other uncharged employees committed the wrongful acts." (Id. at p. 821.) Quoting from the legislative committee comment to Government Code section 815.2, the court explained, "'Under this section, it will not be necessary in every case to identify the particular employee upon whose act the liability of the public entity is to be predicated. All that will be necessary will be to show that some employee of the public entity tortiously inflicted the injury in the scope of his employment under circumstances where he would be personally liable.'" (Perez, at pp. 820-821, quoting Deering's Cal. Codes Ann. foll. Gov. Code, § 815.2, p. 141; 4 Cal. Law Revision Com. Rep. (1963) p. 838; see Choate v. County of Orange (2000) 86 Cal.App.4th 312, 323 ["It is not unusual to have difficulty identifying who in a melee is responsible for what. . . . [¶] All the defendants named and served plaintiffs were directly involved in the incident. This is not a situation where plaintiffs insisted, in the face of uncontroverted evidence, on proceeding against individuals who had no conceivable role in contributing to their injuries."].)
Applying this principle here, the County may be found liable for violating section 52.1 if the jury concludes the Venegases' constitutional rights were violated on June 24, 1998 through the use of threats, intimidation or coercion by one or more members of the TRAP team, even if it also concludes Deputy Harris did nothing wrong. Accordingly, the County defendants' motion for summary judgment should have been denied.
DISPOSITION
The judgment is reversed. The Venegases are to recover their costs on appeal.
PERLUSS, P. J. We concur:
WOODS, J.
ZELON, J.