Opinion
G052259
12-29-2016
DEEPAK VOHRA, Plaintiff and Appellant, v. CITY OF ANAHEIM et al., Defendants and Respondents.
Deepak Vohra, in pro. per, for Plaintiff and Appellant. Michael R.W. Houston, City Attorney, and Gregg M. Audet, Deputy City Attorney for 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 30-2013-00637902) OPINION Appeal from a judgment of the Superior Court of Orange County, David T. McEachen, Judge. Affirmed. Deepak Vohra, in pro. per, for Plaintiff and Appellant. Michael R.W. Houston, City Attorney, and Gregg M. Audet, Deputy City Attorney for Defendants and Respondents.
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Plaintiff Deepak Vohra filed a complaint alleging personal injury and other claims against the City of Anaheim (Anaheim) and police officers Rodney Celello, Daniel Lambaren and Jossue Hernandez (collectively defendants). Vohra's claims concerning events occurring in March 2012 fail because defendants had no duty to act under the circumstances, and the actions they took were statutorily immunized. The trial court correctly granted summary judgment in defendants' favor. Accordingly, we affirm.
I
FACTS AND PROCEDURAL HISTORY
In March 2013, Vohra filed a form complaint for personal injury against defendants, asserting causes of action for general negligence, "[f]elonious attack assault battery, conspiracy, injury, emotional distress, city created danger, known danger, discrimination, fraud, deceit, coverup, hate crime, harassment, stalking, targeting, monitoring, violation of state civil rights, negligence etc."
The complaint incorporated factual allegations from an attached "Claim Against the City of Anaheim" submitted to Anaheim on September 7, 2012. The factual allegations of the claims are largely repeated in Vohra's summary judgment opposition papers, which we relate below.
In April 2014, defendants answered the complaint, generally denied its allegations, and raised several affirmative defenses.
In March 2015, defendants moved for summary judgment. Defendants argued claims premised on incidents occurring before March 2012 were barred because Vohra failed to submit a claim to Anaheim within six months of the incidents. (Gov. Code, § 911.2.) Concerning the March 2012 incidents, defendants argued no facts supported Vohra's claims and defendants were statutorily immune from liability.
In support, defendants submitted declarations from the officers involved. According to Officer Hernandez, on March 9, 2012, he received a report of someone dumping materials from a pickup truck onto the sidewalk in violation of the city's code. He spoke with Vohra, who stated he was feeding cats in the area. Vohra told him a male subject had been following him, but Hernandez did not see anyone. Hernandez saw cat food in Vohra's truck and decided not to cite Vohra.
On March 20, 2012, Officer Lambaren responded to a report concerning a man bleeding from the face at the same location as the March 9 incident. Vohra, who appeared to have sustained an injury to his nose, claimed he had been driving his truck in an alley when another truck blocked his path. An individual, later determined to be Robert Dion, exited the passenger side of the truck, approached Vohra, and punched him once in the face. Vohra recognized Dion from a prior encounter. Vohra asserted the attack was unprovoked and demanded that Lambaren arrest Dion. Vohra provided Lambaren with an incident number from his prior contact, and Lambaren reviewed the report, which concerned the dumping incident.
Lambaren spoke with Dion, who stated Vohra approached him in the alley and threatened him. When Dion's brother arrived to pick him up, Vohra approached and began yelling at him. Dion approached the door of Vohra's truck. Vohra continued to yell at Dion and started to get out of his vehicle. Fearing for his safety, Dion punched Vohra once in the face. Dion's brother confirmed Dion's account of the incident, stating Vohra appeared extremely agitated during the encounter. Lambaren prepared a police report and the matter was assigned to Detective Celello.
Celello read Lambaren's report and reinterviewed Dion and Vohra, whose statements remained unchanged. Celello presented the case to a prosecutor, who declined to file charges. No evidence surfaced the City of Anaheim employed Dion. Vohra submitted his claim to the city on September 7, 2012, which the city denied.
Vohra opposed defendants' motion. He asserted defendants' refusal on March 9 to comply with his citizen's arrest of Dion, who he claimed was a felon and sex registrant, placed him "in a dangerous position and created a serious risk of harm," ultimately resulting in Dion assaulting and injuring him on March 20. He argued defendants violated the law and breached a legal duty by refusing to arrest Dion. Vohra also stated there was a history, pattern and practice by defendants of covering up assaults and other offenses committed against him.
Specifically, Vohra asserted he had suffered nine incidents of assault and battery dating back to March 2009. He made police reports, but the city refused to prosecute and instead covered up the incidents. Vohra accused Celello of falsely arresting him on a prior occasion in November 2002. (Welf. & Inst. Code, § 5150 [authorizing peace officer to take custody of person suffering from mental disorder who is a danger to himself or others for 72-hour mental health evaluation and treatment].) Other incidents occurred in 2010 and 2011 that involved threats, stalking, harassment, assault and battery by city agents, and wrongful searches and detentions.
Vohra refers to incidents antedating March 2012 apparently to show defendants had a "history & pattern and practice" of covering up his complaints about police abuse. Any claims related to these events were barred because Vohra did not comply with the Government Claims Act (Gov. Code, § 911.2, subd. (a) [claim relating to a cause of action for injury to person or to personal property must be presented to the public entity within six months after the accrual of the cause of action]; all statutory citations are to the Government Code unless otherwise designated). --------
Concerning the incidents occurring on the evening of March 9, 2012, a man who he later learned through discovery was Robert Dion, stalked him, threatened his life, and challenged him to a fight. When Officer Hernandez arrived, Vohra told him to arrest Dion for threatening him and pointed to Dion who was across the street. Hernandez said "that ain't going to happen." Hernandez said Dion reported to the police he saw Vohra dump something. Vohra denied dumping anything and claimed Dion could not have seen him dump anything before the officer arrived. Hernandez refused to provide Vohra with Dion's name, or to arrest Dion for filing a false police report. Vohra asserted Dion was a violent felon and sex registrant and Hernandez had a duty to warn and protect him. Vohra complained to a desk sergeant, and faxed a complaint letter to the chief of police the next day, but he received no answer.
On the evening of March 20, 2012, Vohra was driving in an alley when a red truck coming from the opposite direction swerved in front of him, blocking his path. Dion exited the passenger side of the truck, approached Vohra through the driver side window, shouted "kill you" and broke Vohra's nose when he punched him using brass knuckles. Vohra asserted he was seated in his driver's seat with his seat belt on, the door closed, and he made no attempt to exit.
Vohra described the assault to Officer Lambaren. He also told Lambaren the man who attacked him was the same person who threatened him on March 9, and he gave Lambaren the incident number to locate the earlier police report. He told Lambaren to arrest the man and the driver, but Lambaren refused, stating the men were no longer present and Vohra would have to "go through detectives." Lambaren also said, "now that your nose is broken you should not come to Anaheim."
Detective Celello never interviewed Vohra. Vohra provided his medical records to Celello, which showed a nasal bone fracture, concussion and brain injury, face-scalp contusion, severe headaches, and blurry vision. On March 22 Vohra complained to Celello about the police department's failure to arrest the Dions. Celello explained the city attorney had to agree to prosecute and it was "too late" for him to detain the Dions so Vohra could make a citizen's arrest. On March 27, Celello told Vohra the city attorney refused to prosecute, and Celello refused to submit the case to the district attorney.
The trial court granted defendants' summary judgment motion, explaining there was no legal basis to support the negligence cause of action because "there is no special relationship between law enforcement and members of the public that would obligate a law enforcement agency to take affirmative action to prevent harm to a particular person." (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1143) The court also found Vohra failed to show the officers had a specific duty to investigate or arrest Dion or take "any other affirmative action against Dion as requested by" Vohra. The court also stated no evidence showed the officers had "imparted a false sense of security to" Vohra making him more vulnerable to the injury. The court also stated "certain immunities" appeared to apply to bar Vohra's claims.
II
DISCUSSION
A. Summary Judgment Standards
"We review orders granting summary judgment de novo." (Vebr v. Culp (2015) 241 Cal.App.4th 1044, 1050.) A motion for summary judgment is properly granted if the moving papers establish there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) "'The moving party bears the burden of showing the court that the plaintiff "has not established, and cannot reasonably expect to establish, a prima facie case. . . ." [Citation.]' [Citation.] '[O]nce a moving defendant has "shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established," the burden shifts to the plaintiff to show the existence of a triable issue; to meet that burden, the plaintiff "may not rely upon the mere allegations or denials of its pleadings . . . but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action. . . ." [Citations.]' [Citation.]" (Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 274.) On appeal, we scrutinize the record for triable issues of fact, "considering all the evidence set forth in the moving and opposition papers except that to which objections have been made and sustained." (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334; NBCUniversal Media, LLC v. Superior Court (2014) 225 Cal.App.4th 1222, 1231 [summary judgment proper where uncontradicted facts established through discovery show statute of limitations has run].)
"Because a motion for summary judgment raises only questions of law, we independently review the parties' supporting and opposing papers and apply the same standard as the trial court to determine whether a triable issue of material fact exists." (Lattimore v. Dickey (2015) 239 Cal.App.4th 959, 967.) B. No Mandatory Duty to Arrest Under Private Person Arrest Law
Vohra contends the trial court erred in granting summary judgment because the officers had a mandatory duty to arrest the Dions based on his demand to make a citizen's arrest. Viewing disputed facts in a light most favorable to Vohra, the evidence shows that on March 9, 2012, Dion threatened Vohra, Vohra pointed out Dion to Officer Hernandez and demanded the officer make a citizen's arrest based on Dion's threat and the false police report Dion filed accusing Vohra of illegal dumping, but the officer refused to make the arrest.
Vohra relies on Penal Code section 142, which provides: "(a) Any peace officer who has the authority to receive or arrest a person charged with a criminal offense and willfully refuses to receive or arrest that person shall be punished by [a fine or by imprisonment in a county jail not exceeding one year]. [¶] (b) Notwithstanding subdivision (a), the sheriff may determine whether any jail, institution, or facility under his or her direction shall be designated as a reception, holding, or confinement facility, or shall be used for several of those purposes, and may designate the class of prisoners for which any facility shall be used. (c) This section shall not apply to arrests made pursuant to Section 837." Penal Code section 837 provides, "A private person may arrest another: [¶] 1. For a public offense committed or attempted in his presence. [¶] 2. When the person arrested has committed a felony, although not in his presence. [¶] 3. When a felony has been in fact committed, and he has reasonable cause for believing the person arrested to have committed it."
As the trial court noted, no evidence showed subdivision (a) of Penal Code section 142 applied because Dion had not been "charged with a criminal offense." Under Penal Code section 837, Penal Code section 142 does not apply to arrests by private persons. The Attorney General opinion and cases cited by Vohra either antedate or do not discuss the 2002 addition to Penal Code section 142 excluding arrests by private persons. As explained in a Senate Judiciary Committee report accompanying the 2002 legislation, "This bill would extend the immunity from liability given to peace officers for false arrest or false imprisonment to arrests made pursuant to a citizen's arrest. The bill would also exempt peace officers from criminal liability for refusing to take persons into custody pursuant to a citizen's arrest." The Committee noted "federal law provides that an officer must have probable cause to take a person into custody," but existing law left an officer no room to exercise discretion in determining whether a crime had occurred and if the person's civil rights would be violated if placed under arrest. "If an officer does not believe that a crime has been articulated by the private person, the officer is still obligated to accept custody," and "when presented with a citizen's arrest, an officer is placed 'in the proverbial "Catch-22" situation' where refusal to take custody subjects the officer to possible criminal penalty but accepting custody subjects the officer to federal civil liability. . . . [¶] The bill seeks to address this situation by exempting citizen's arrests from both the criminal penalty and civil liability provisions." The Committee noted "peace officers will be provided with discretion to determine whether or not to take a person into custody pursuant to a citizen's arrest. [¶] Thus, the decision whether or not to take a person into custody pursuant to a citizen's arrest becomes a discretionary act of the officer, protected by the immunity from liability provided for in the Government Tort Claims Act for discretionary acts. [Government Code Sec. 820.2.] This existing immunity is quite broad and extends even to abuses of discretion." (Legis. Counsel's Dig., Assem. Bill No. 1835 (2001-2002 Reg. Sess.) Senate Bill analysis, § 142.)
Thus, the officers did not have a mandatory duty under section 142 to take the Dion brothers into custody at Vohra's behest. Likewise, the officers' decision not to arrest the Dions was a discretionary call on their part and therefore protected by statutory immunity. (§§ 820.2, 846.) C. No Special Relationship
Vohra states the trial court's finding there was no "special relationship" between him and the defendants was "not the issue," and the trial court erred in refusing to address the "special relationship" between defendants and Dion based on Dion's status as a violent felon and sex registrant. He claims defendants had a "mandatory duty to track and monitor" Dion, "preempt him from indulging in any criminal [and] violent activity and to warn" Vohra and protect him.
"[A]s a matter of sound policy the Legislature has provided immunity for the consequences of a decision not to arrest; hence no duty can be premised on any omission to take [persons] into custody. (§ 846.) As stated in Lehto v. City of Oxnard (1985) 171 Cal.App.3d 285, 288: 'Under our system of law the power to make an arrest of another individual is a power grudgingly given in furtherance of the public interest in preventing crime. It is a power which is strictly limited and the abuse of such power can result in civil liability. It would be contrary to public policy, simultaneously, to permit the imposition of civil liability for a failure to exercise the power. Hence the immunity is a logical adjunct to the public policy.'" (City of Sunnyvale v. Superior Court (1988) 203 Cal.App.3d 839, 842 (City of Sunnyvale).) The court in the City of Sunnyvale explained the law placed no duty on police officers "to protect individuals from potential wrongdoers. [¶]. . . [It is] a general principle that neither a police officer's observation of conduct which could foreseeably create a risk of harm to others nor his temporary detention of such potentially dangerous individual creates a special relationship imposing on the officer a duty to control that citizen's subsequent behavior." (Id. at p. 842.) Officers do not "increase the risk of harm by failing to stop a dangerous individual. Absent a special relationship the officers owe the plaintiff no duty where the alleged tort 'consists merely in police nonfeasance.'" (Id. at p. 843; see Sullivan v. City of Sacramento (1987) 190 Cal.App.3d 1070 [police officers not liable for failure to protect; one who has not created a peril is not liable in tort for failing to take affirmative steps to protect another absent a special relationship that created a duty to act; recovery is denied for police failure to investigate or respond to requests for assistance absent express promises and reliance thereon].)
Here, Vohra's claims are premised on the consequences of the officers' decision not to arrest the Dions or to take precautionary steps to prevent Dion from harming him in the future. Vohra fails to establish the existence of a special relationship or other basis to impose a duty to protect him. (See Lehto, supra, 171 Cal.App.3d at p. 291 [noting total absence of factors necessary for liability; officers involved did not create the peril to plaintiff, they did not voluntarily assume a special duty to protect him, made no promise or statement to induce his reliance, and did not increase the risk to him that would have otherwise existed].) Moreover, the officers were legislatively immune from the consequences of their decision not to arrest the Dions. (§§ 820.2, 846.)
Vohra relies on special relationship cases that involve relationships distinguishable from that between a police officer and citizen. (Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 436-437 [the therapist in a doctor-patient relationship must exercise reasonable care to control behavior or warn of patient who might endanger other persons].) Indeed in Tarasoff, the Supreme Court found as "to the police defendants, we conclude that they do not have any such special relationship to" the victim or the patient turned assailant "sufficient to impose upon such defendants a duty to warn respecting [his] violent intentions." (Id. at p. 444; see Hartzler v. City of San Jose (1975) 46 Cal.App.3d 6, 8 [police department enjoyed absolute, not merely discretionary, immunity from liability for failure to provide sufficient police protection and in absence of evidence victim relied on any implied or express promise of the police department to provide her with protection]; Antique Arts Corp. v. City of Torrance (1974) 39 Cal.App.3d 588, 592-593 [statutory scheme makes clear the failure to provide adequate police protection will not result in governmental liability nor will a public entity be liable for failure to arrest a person violating the law].) D. No Evidence Officers Created or Increased the Risk of Harm to Vohra
Vohra argues defendants "affirmative conduct of refusing to arrest" Dion created the risk and made his position worse. As explained, officers do not "increase the risk of harm by failing to stop a dangerous individual. Absent a special relationship the officers owe the plaintiff no duty where the alleged tort ' consists merely in police nonfeasance.'" (City of Sunnyvale, supra, 203 Cal.App.3d at p. 843.) Vohra's reliance on Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40 is misplaced. In that case, a radio station created a foreseeable risk of harm by staging a contest that encouraged youthful motorists to engage in high speed automobile driving in a metropolitan area. Nothing comparable occurred here. E. Sections 815.2 and 815 .6
Vohra asserts defendant Anaheim is liable under to sections 815.2 and 815.6. Section 815.2 imposes tort liability on a public entity based on the actions or omissions of an employee acting within the scope of employment where the act or omission would give rise to liability against the employee. As noted, there is no basis to impose liability against the employee officers in this case so section 815.2 is inapplicable.
Section 815.6 provides "Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty." As noted, Anaheim and its officers were not under a mandatory duty "to receive or arrest" the Dions or to "warn & protect" Vohra from the possibility the Dions may harm him in the future. F. No Evidence of Any Other Statutory Basis of Liability
Finally, Vohra asserts he bore no burden "to cite a specific code section" or to "plead statutes" to support a "claim against the city." Section 815 provides, "Except as otherwise provided by statute: [¶] (a) A public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person. [¶] (b) The liability of a public entity established by this part (commencing with Section 814) is subject to any immunity of the public entity provided by statute, including this part, and is subject to any defenses that would be available to the public entity if it were a private person." Regardless whether Vohra was required to cite a particular statutory section, he was required to supply evidence demonstrating a statutory violation. He failed to do so in this case.
III
DISPOSITION
The judgment is affirmed. Respondent is entitled to their costs on appeal.
ARONSON, J. WE CONCUR: O'LEARY, P. J. MOORE, J.