Opinion
A150897
05-15-2018
ROBERT TIMOTHY ANTON VOELKER, Plaintiff and Appellant, v. CENTRAL MARIN POLICE AUTHORITY et al., Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Marin County Super. Ct. No. CIV1302678)
Plaintiff Robert Timothy Anton Voelker appeals a summary judgment entered in favor of defendants Central Marin Police Authority, City of Larkspur, Town of Corte Madera, Town of San Anselmo, Marin Community College District and several individual police officers on his complaint seeking damages for injuries sustained while attempting to evade arrest. He contends the court erred in concluding that the uncontroverted facts preclude recovery under his claims for violation of his civil rights or for negligence. We disagree and therefore shall affirm the judgment.
Factual and Procedural Background
As amended, plaintiff's complaint alleges three causes of action under the federal civil rights statute, 42 United States Code section 1983 (excessive force in violation of the Fourth, Eighth and Fourteenth Amendments; racial discrimination in violation of the equal protection clause of the Fourteenth Amendment, and a claim for municipal liability), five causes of action under the state civil rights statute, Civil Code section 52.1 (false arrest, assault, battery, intentional infliction of emotional distress, and negligent infliction of emotional distress), and a cause of action for negligence.
Defendants moved for summary judgment, offering the following undisputed facts in support of their motion:
On June 21, 2012, at approximately 9:35 p.m., Central Marin Police Authority Officer C. Lovenguth was dispatched to an address in Larkspur in response to a report of a residential burglary. A witness described the suspected burglar as tall and thin, wearing a tank top and blue jeans. The suspect was last seen running on Rice Lane. The police set up a perimeter around the area and located plaintiff, wearing a black tank top and blue jeans, running on Rice Lane. Officer K. Tannous identified himself as a police officer and ordered plaintiff to stop. Plaintiff did not respond to the officers command and continued running, with police in pursuit.
Plaintiff climbed over a fence into a residential backyard, climbed onto a barn and then proceeded to climb 60 to 70 feet up a redwood tree. At the top of the tree, he held on to branches with both hands and braced himself with his feet. It was windy and the tree swayed significantly side to side.
Officer Tannous lost sight of plaintiff when he climbed over the backyard fence, but when officers searched the backyard they heard noises in the tree and saw small branches falling. The officers could not see plaintiff in the tree, but could hear moaning or groaning noises. They identified themselves as police officers and ordered plaintiff to climb down from the tree. The officers shined their flashlights up into the tree but could not see plaintiff through the branches.
According to his deposition testimony, plaintiff could hear the officers below and felt they were heckling and intimidating him. The lights from the officers' spotlight blinded him, causing him to lose his footing, panic and fall from the tree, landing on a roof below. Officers confirmed that they saw movement in the tree and then heard a loud bang as defendant landed on the roof. The officers believed, based on the distance of the roof from the tree, that plaintiff had jumped. Plaintiff was removed from the roof and transported to the hospital.
Plaintiff objected to the admissibility of his deposition transcripts, but did not otherwise dispute the above facts.
Following a hearing on the motion, the court granted summary judgment in favor of all defendants. Plaintiff timely filed a notice of appeal.
Discussion
1. Standard of Review
Summary judgment is appropriate "if 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).) "A defendant may make this showing by demonstrating that the plaintiff cannot establish one or more elements of all of his causes of action, or that the defendant has a complete defense to each cause of action. [Citation.] This court reviews an order granting a motion for summary judgment de novo." (Marshall v. County of San Diego (2015) 238 Cal.App.4th 1095, 1107.)
2. Evidentiary Objection
Plaintiff objected to the admissibility of his deposition transcripts on the ground that he was not given notice and an opportunity to review them in violation of Code of Civil Procedure section 2025.520 and alternatively, on the ground that the court reporter violated Code of Civil Procedure section 2025.540 by certifying the transcripts without waiting 30 days after giving notice that the transcripts were available for review.
Code of Civil Procedure section 2025.520 reads in relevant part, "(a) If the deposition testimony is stenographically recorded, the deposition officer shall send written notice to the deponent and to all parties attending the deposition when the original transcript of the testimony for each session of the deposition is available for reading, correcting, and signing, unless the deponent and the attending parties agree on the record that the reading, correcting, and signing of the transcript of the testimony will be waived or that the reading, correcting, and signing of a transcript of the testimony will take place after the entire deposition has been concluded or at some other specific time. [¶] (b) For 30 days following each notice under subdivision (a), unless the attending parties and the deponent agree on the record or otherwise in writing to a longer or shorter time period, the deponent may change the form or the substance of the answer to a question, and may either approve the transcript of the deposition by signing it, or refuse to approve the transcript by not signing it. [¶] . . . [¶] (f) If the deponent fails . . . to approve the transcript within the allotted period, the deposition shall be given the same effect as though it had been approved . . . ." Code of Civil Procedure section 2025.540 reads, "(a) The deposition officer shall certify on the transcript of the deposition, . . . that the deponent was duly sworn and that the transcript or recording is a true record of the testimony given. [¶] (b) When prepared as a rough draft transcript, the transcript of the deposition may not be certified and may not be used, cited, or transcribed as the certified transcript of the deposition proceedings. The rough draft transcript may not be cited or used in any way or at any time to rebut or contradict the certified transcript of deposition proceedings as provided by the deposition officer."
Here, in support of their motion for summary judgment, defendants filed a declaration by the court reporter that indicated the dates of completion, certification and notice to plaintiff for each of the five volumes of deposition transcripts. The court found that the declaration and the letters attached as exhibits to the declaration established that the required notice had been given. Plaintiff argued the letters were mailed to the wrong address, but the letters were sent to the address plaintiff had provided and the court correctly concluded that it was plaintiff's responsibility to update the reporter with any changes to his mailing address.
The court also rejected plaintiff's alternate argument, explaining that the statutory provisions do not impose a waiting period before the court reporter may certify the transcript. The trial court's ruling is correct. Although Code of Civil Procedure section 2025.540, subdivision (b) authorizes a court reporter to prepare the transcript as a rough draft and wait for its review prior to certification (see Thomas et al., Cal. Civ. Courtroom Handbook & Desktop Ref. (2017) § 21:79), the statute does not require that the court reporter do so. The court reporter properly certified the transcripts under Code of Civil Procedure section 2025.540, subdivision (a) and under Code of Civil Procedure section 2025.520, subdivision (f), they were deemed approved when plaintiff failed to act. Accordingly, the deposition transcripts were properly considered in ruling on the motion for summary judgment. Moreover, we note that plaintiff has failed to suggest any error in the transcripts, much less an error on a material issue.
3. 42 United States Code section 1983 Claims
Under 42 United States Code section 1983, "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . ." Section 1983 "is not itself a source of substantive rights, but merely provides a method for vindicating federal rights elsewhere conferred." (Graham v. Connor (1989) 490 U.S. 386, 393-394.)
Plaintiff's complaint alleges that the police used excessive force in violation of his rights under Fourth and Fourteenth Amendments. " 'The Fourth Amendment protects individuals against "unreasonable searches and seizures." To state a claim of excessive force under the Fourth Amendment, a plaintiff must show both that a "seizure" occurred and that the seizure was "unreasonable." [Citation.]' [Citation.] 'A "seizure" triggering the Fourth Amendment's protections occurs only when government actors have, "by means of physical force or show of authority, . . . in some way restrained the liberty of a citizen [.]" [Citations.]' [Citation.] '[T]he "reasonableness" inquiry in an excessive force case is an objective one: the question is whether the officers' actions are "objectively reasonable" in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.' " (Susag v. City of Lake Forest (2002) 94 Cal.App.4th 1401, 1414; see Graham v. Connor, supra, 490 U.S. at p. 394 [Where the excessive force claim arises in the context of an arrest or investigatory stop of a free citizen, such claims are properly analyzed under the Fourth Amendment's "objective reasonableness" standard, rather than under a Fourteenth Amendment substantive due process standard.].)
Plaintiff argues that a reasonable jury could conclude from the undisputed facts that "defendants probably intended to cause plaintiff to fall dozens of feet from the top of the redwood tree to the ground by shining high intensity lighting at him" and that the officers' "blinding of plaintiff . . . with their bright high intensity lights while he clung precariously dozens of feet up a redwood tree was an unreasonable seizure in violation of the Fourth Amendment." We disagree.
We assume that a seizure occurred when the officers surrounded plaintiff in the tree and ordered him to come down. The shining of a light into the tree, however, was undoubtedly reasonable whether with a standard flashlight as the officers testified or with some form of spotlight as plaintiff speculated. The officers had reason to believe that plaintiff, a burglary suspect, was hiding in the tree attempting to evade arrest. It was dark and they could not see him. Nothing in the record supports the inference that the officers intended to make him fall, but regardless of their intent, the test is an objective one and illuminating the tree to locate plaintiff was objectively reasonable. Accordingly, the trial court properly entered summary judgment in favor of defendants on plaintiff's claims under 42 United States Code.
Plaintiff's amended complaint also contains claims under 42 United States Code section 1983 for racial discrimination and violation of the Eighth Amendment. The court held that plaintiff's claims under the Eighth Amendment are not cognizable because they are unrelated to a formal adjudication of guilt and that there is no evidence that the officers acted with a racially discriminatory intent. Plaintiff has not challenged these rulings on appeal.
4. State Law Civil Rights Claims
Civil Code section 52.1 proscribes interference or attempted interference by threats, intimidation or coercion with rights secured by federal or state law. To establish a right to relief under Civil Code section 52.1 a plaintiff must prove, among other elements, that the defendant interfered with or attempted to interfere with the plaintiff's constitutional or statutory right by threatening or committing violent acts. (Austin B. v. Escondido Union School Dist. (2007) 149 Cal.App.4th 860, 882; see also Civ. Code, § 52.1, subd. (j) ["Speech alone is not sufficient to support an action brought pursuant to subdivision (a) or (b), except upon a showing that the speech itself threatens violence against a specific person or group of persons."].) The undisputed facts in this case fail to establish any act of violence or threat of violence. Plaintiff's characterization of the officers' act of shining a light into the tree as the use of deadly force is frivolous. Accordingly, the trial court properly entered judgment in favor of defendants on plaintiff's claims under Civil Code section 52.1.
Civil Code section 52.1 reads in relevant part: "(a) If a person or persons, whether or not acting under color of law, interferes by threats, intimidation, or coercion, or attempts to interfere 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 Attorney General, or any district attorney or city attorney may bring a civil action for injunctive and other appropriate equitable relief in the name of the people of the State of California, in order to protect the peaceable exercise or enjoyment of the right or rights secured . . . . [¶] (b) Any individual 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), may institute and prosecute in his or her own name and on his or her own behalf a civil action for damages . . . ."
5. Negligence
Plaintiff argues that a reasonable jury could have found defendants guilty of negligently causing his injuries if it concluded that "the individual police defendants did not intend to cause plaintiff to fall but were merely unreasonably careless for plaintiff's safety while he clung precariously to the top of the redwood tree." As discussed above, shining a light into the tree to locate the hiding suspect was entirely reasonable under the circumstances. Without questioning the premise that the officers had a duty to exercise reasonable care to avoid unnecessary injury in apprehending a suspect (see Brown v. Ransweiler (2009) 171 Cal.App.4th 516, 534-535), under the uncontroverted facts here, the officers' conduct was objectively reasonable. Accordingly, the trial court properly entered judgment in favor of defendants on plaintiff's negligence claim.
Disposition
The judgment is affirmed.
/s/_________
Pollak, J. We concur: /s/_________
McGuiness, Acting P.J. /s/_________
Jenkins, J.
Retired Presiding Justice of the Court of Appeal, First Appellate District, Division Three, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------