| Re:
? |
Rolon v. Fresno Unified School District et al., Superior Court Case No. 15CECG03529 | |
| Hearing Date:
|
December 21, 2017 (Dept. 403) | |
| Motion:
|
(1) City of Fresno and Melody Hughes? Motion for Summary Judgment | |
| (2) Fresno Unified School District?s Motion for Summary Judgment |
Tentative Ruling:
To grant both motions.? (Code Civ. Proc. ? 437c(c).)? Prevailing parties are directed to submit to this court, within 5 days of service of the minute order, a proposed judgment consistent with the court?s summary judgment order.
Explanation:?
Both motions are brought on the same grounds and will be discussed jointly.
Plaintiff has not filed any opposition, apparently conceding the merits of the motions.
On October 16, 2014, Plaintiff Hulises Rolon, a high school freshman, was in a class when he and another student, Jesus P., got up and left the classroom, while class was in session, in order to engage in a fight.? FUSD teacher Vincent Branstetter followed the two students outside, got between them, and ordered Jesus back to classroom, an order with which Jesus complied.? (FUSD UMF 5.)? Plaintiff was adamant in his desire to follow Jesus into the classroom, but Mr. Branstetter repositioned himself in front of the door to block Plaintiffs entry.? (FUSD UMF 6.)? As Mr. Branstetter continued to block the door, Plaintiff was trying to push him out of the way. (FUSD UMF 7.)? Mr. Branstetter then yelled at a custodian to call for help.? (FUSD UMF 8.)? While waiting for help to arrive, Plaintiff continued to be defiant, refused to listen to Mr. Branstetter?s commands, and kept on trying to enter the classroom.? (FUSD UMF 9.)? Upon the arrival of Officer Hughes, Mr. Branstetter assumed Plaintiff would calm down due to the presence of a police
Officer, so Mr. Branstetter removed himself from the doorway.? (UMF 10.)? At that point, Plaintiff, who still had not calmed down, grabbed the door and raced into the classroom.? (FUSD UMF 11.)? Officer Hughes and Mr. Branstetter followed Plaintiff into the classroom after Plaintiff refused Officer Hughes? commands to stop.? (FUSD UMF 12.)? Upon entry into the classroom, Plaintiff ran toward Jesus.? (FUSD UMF 13.) Jesus stood up to defend himself, and a fight broke out.? (FUSD UMF 14.)? Officer Hughes ordered Jesus and Plaintiff to stop fighting, but Plaintiff refused.? (FUSD UMF 15.)? Officer Hughes then took Plaintiff down to the floor, while ordering him to calm down, which Plaintiff continued to refuse to do.? (FUSD UMF 16.)? At that point, two campus assistants arrived on the scene, and, as Plaintiff was continuing to resist, they helped Officer Hughes to again take Plaintiff to the floor, at which point she handcuffed him and escorted him from the classroom.?? (FUSD UMF 17.)
The City and Officer Hughes go into more detail in their motion about the officer?s actions in stopping the fight and restraining Plaintiff.? Officer Hughes ordered plaintiff numerous times not to enter the classroom, ignored Hughes? commands and entered the classroom anyway.? (City UMF 8.)? Officer Hughes followed, attempting to restrain plaintiff, who using vulgarity pursued Jesus, who was attempting to avoid fighting and was backing away until he could retreat no further.? (UMF 9, 10.)? Plaintiff picked up a chair and threw it across the room towards the teacher?s desk, while Officer Hughes continuously ordered him to stop.? (UMF 11.)? Despite Officer Hughes? repeated commands to stop, Plaintiff started throwing punches at Jesus, who fought back.
Officer Hughes states that Plaintiff refused to listen to her commands and at this point Hughes had to detain him by turning his body to his left in an effort to control him. It was necessary for Officer Hughes to turn Plaintiff away from the center of the room, due to the safety of the victim and the rest of the class. (UMF 20.)? Officer Hughes described restraining Plaintiff while he continued to attempt to get at Jesus, responding ?F*** that? to Officer Hughes? repeated commands to stop.? Officer Hughes took Plaintiff to the ground.? Plaintiff stood up again, and was taken to the ground again with the help of campus assistants.? (UMF
Plaintiff continued to resist Officer Hughes and attempted to free from her hold. He was upset, saying he wanted to fight. Hughes placed Plaintiff on the ground behind her in the back of the class. As Officer Hughes was placing him on the floor, she asked him to calm down and to listen to her commands. Plaintiff said, ?F*** that ? let me go?.
(UMF 21.)? Plaintiff was face down on the ground, but trying to get up. Hughes continued telling him to listen to her commands. A Campus Assistant entered the classroom and assisted Hughes by grabbing Plaintiff?s right arm, attempting to control him.? (UMF 22.)? They stood Plaintiff up so Officer Hughes could place handcuffs on him due to the space in the room and how big Plaintiff is. As they attempted to stand him up, Plaintiff once again lunged at Jesus, causing him and Officer Hughes to fall to the floor where he was placed on his stomach. Plaintiff struggled to keep his right arm under his body. Officer Hughes and Campus Assistants were able to get his right arm free and he was finally placed in handcuffs.? (UMF 15-23.)
Ultimately Officer Hughes placed Plaintiff under arrest for Violation of California
Penal Code section 415.5(3), fighting on a school campus; and Penal Code section 148, obstructing a police officer from performing duties. Although Officer Hughes could have charged Plaintiff with battery on a peace officer, for resisting to the point of causing them both to fall to the ground causing injury, she chose not to, in order to prevent him from being transported to juvenile hall.? (UMF 26.)
First Cause of Action
The first cause of action alleges that defendants violated Civil Code section 51.7.
Plaintiff must show: (1) the defendant threatened or committed violent acts against the plaintiff; (2) the defendant was motivated by his perception of plaintiff?s protected characteristic; (3) the plaintiff was harmed; and (4) the defendant’s conduct was a substantial factor in causing the plaintiff’s harm.? (Civ. Code ? 51.7; I.H. by & through Hunter v. Oakland Sch. For Arts (N.D. Cal. 2017) 234 F.Supp.3d 987, 995.)
At his deposition, Plaintiff was unable to provide any basis for contending that he was discriminated against because he is of Mexican descent.? (Rolon Depo. at 161:25162:7.)? Accordingly, even assuming Plaintiff has evidence supporting the first, third, and fourth elements, there is no evidence that defendants acted with racial animus.
Second Cause of Action
Section 52.1 of the California Civil Code authorizes a claim for relief ?against anyone who interferes, or tries to do so, by threats, intimidation, or coercion, with an individual?s exercise or enjoyment of rights secured by federal or state law.?? (Civ. Code ? 52.1; Jones v. Kmart Corp. (1998) 17 Cal.4th 329, 331.)? To obtain relief under this statute, a plaintiff must prove that a defendant tried to, or did, prevent the plaintiff from doing something that he had the right to do under the law, or to force plaintiff to do something that he was not required to do under the law.? (Ibid. at p. 334.)
The elements of an excessive force claim under Civil Code ? 52.1 is the same as under 42 USC ? 1983.? (Boarman v. County of Sacramento (E.D. Cal. 2014) 55 F.Supp.3d 1271, 1287.)? Section 52.1 does not require proof of discriminatory intent.? (Venegas v.
Cnty. of L.A. (2004) 32 Cal.4th 820.)
The Fourth Amendment prohibits the use of excessive force by police in the course of apprehending suspected criminals.? (See, Graham v. Connor (1985) 490 9 U.S.
386, 394-395.)? ?[T]he 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.? (Id. at p. 397.)? This determination ?must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.?? (Id. at p. 396.)? The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments ? in circumstances that are tense, uncertain, and rapidly evolving ? about the amount of force that is necessary in a particular situation.?? (Id. at p. 396-97.)
A California peace officer ?may use reasonable force to make an arrest, prevent escape or overcome resistance, and need not desist in the face of resistance.?? (Munoz v. City of Union City (2004) 120 Cal.App.4th 1077, 1102, citing Pen. Code, ? 835(a).)? The question is whether a peace officer’s actions were objectively reasonable based on the facts and circumstances confronting the peace officer.? (Id. at p. 1103.)
Defendants were attempting to prevent Plaintiff from fighting with another student on campus, which is a violation of Pen. Code ? 415.5.? Defendants, and particularly Officer Hughes, made numerous commands to Plaintiff to: 1) not enter the classroom; 2) to stop; 3) to stop fighting; and 4) to calm down ? none of which Plaintiff complied with.? The City?s expert on police practices shows that Officer Hughes did not violate any policy or procedure, but rather delivered police services intended to assure the safety and welfare of the students and staff involved.? (UMF 27-28.)
The uncontradicted evidence of the incident demonstrates a lawful arrest in which reasonable force was utilized by all involved.
Defendants are entitled to immunity from the section 52.1 claim.? Government Code section 820.2 provides that, ?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.?? However, section 820.2 ?does not confer immunity on peace officers for discretionary acts involving unreasonable use of force.?? (Megargee v. Wittman (E.D. Cal. 2008) 550 F.Supp.2d 1190, 1208 (citing Scruggs v. Haynes (1967) 252 Cal.App.2d 256, 266.)
As discussed above, the force used in the incident was necessary and reasonable given plaintiff?s aggressive and noncompliant behavior. Accordingly, Officer Hughes and the FUSD employees are entitled to immunity and not liable under section 820.2.? The City and FUSD cannot be vicariously liable under the theory of respondeat superior.? (Gov. Code ? 815.2(a).)
Third Cause of Action
The third cause of action is for negligence under Government Code section 815.2: ?a public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee ??
California Civil Code section 1714(a) provides: ?Everyone is responsible, not only for the result of his ? willful acts, but also for an injury occasioned to another by his ? want of ordinary care or skill in the management of his ? property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself.?? (Emphasis added.)? To prevail on a claim for negligence, Plaintiff must establish: (1) a legal duty to use due care; (2) a breach of that duty; and (3) injury that was proximately caused by the breach.? (Knapps v. City of Oakland (N.D. Cal. 2009) 647 F.Supp.2d 1129, 1164 amended in part (Sept. 8, 2009) citing, Ladd v. County of San
Mateo (1996) 12 Cal.4th 913, 917.)
under California law, negligence claims based on allegations of excessive force
are evaluated using the same standard of objective reasonableness as set forth above. (Hernandez v. City of Pomona (2009) 46 Cal.4th 501, 514.)? Determination whether an officer breached such duty is ?analyzed under the reasonableness standard of the Fourth Amendment to the United Constitution.?? (David v. City of Fremont (N.D. Cal.
2006) 2006 WL 2168329, 21, citing Munoz, supra, 120 Cal.App.4th at pp. 1102-1106.)
As discussed above, the undisputed evidence shows that defendants used reasonable force in stopping the fight.? Plaintiff brought upon himself any injury suffered.
Fourth Cause of Action
Plaintiff?s claim for negligent hiring, supervision and/or retention fails for the same reason the negligence claim fails.? Additionally, the evidence presented shows that Officer Hughes has been properly trained and meets or exceeds the P.O.S.T. requirements, and has received updated use of force training.? (UMF 30, 32.)? Defendants prevail on any claim of negligent hiring, training or supervision.
Fifth Cause of Action
?A battery is any willful and unlawful use of force or violence upon the person of another.?? (Pen. Code ? 242.)? The elements of civil battery are: (1) defendant intentionally did an act which resulted in a harmful or offensive contact with the plaintiff?s person; (2) plaintiff did not consent to the contact; and (3) the harmful or offensive contact caused injury, damage, loss, or harm to plaintiff.? (Piedra v. Dugan (2004) 123 Cal.App.4th 1483, 1495.)? ?[T]o prevail on a claim of battery against a police officer, the plaintiff bears the burden of proving the officer used unreasonable force.?? (Munoz, supra, 120 Cal.App.4th at 1102.)
As the evidence shows that defendants used reasonable force to make the arrest and stop Plaintiff?s unlawful actions, defendants prevail on the battery claim.
Punitive Damages
Under Government Code ? 818, the public entity defendants (FUSD and City of Fresno) cannot be liable for punitive damages.
Pursuant to Cal. Rules of Court, Rule 3.1312(a) and Code Civ. Proc. ? 1019.5(a), no further written order is necessary.? The minute order adopting this tentative ruling will serve as the order of the court and service by the clerk will constitute notice of the order.
Tentative Ruling
Issued By: ???????????????KCK?????????? on 12/18/17
(Judge?s initials) ?????? (Date)