Cornell v. City & Cnty. of S.F.

Decision Date16 November 2017
Docket NumberA142147,A141016
Citation17 Cal.App.5th 766,225 Cal.Rptr.3d 356
CourtCalifornia Court of Appeals Court of Appeals
Parties Bret CORNELL, Plaintiff and Respondent, v. CITY AND COUNTY OF SAN FRANCISCO, et al., Defendants and Appellants.

17 Cal.App.5th 766
225 Cal.Rptr.3d 356

Bret CORNELL, Plaintiff and Respondent,
v.
CITY AND COUNTY OF SAN FRANCISCO, et al., Defendants and Appellants.

A141016
A142147

Court of Appeal, First District, Division 4, California.

Filed November 16, 2017
As Modified November 17, 2017


Haddad & Sherwin, Michael J. Haddad, Julia Sherwin, Genevieve K. Guertin, and

225 Cal.Rptr.3d 359

T. Kennedy Helm, Oakland, for Plaintiff and Respondent.

Dennis J. Herrera, City Attorney, Cheryl Adams, Chief Trial Deputy, Margaret W. Baumgartner, Deputy City Attorney, for Defendants and Appellants.

Streeter, J.

17 Cal.App.5th 771

Police officer trainee Bret Cornell, while off-duty and in street clothes, went for a run one morning in Golden Gate Park, stopping for a brief rest on a knoll called Hippie Hill. Two uniformed patrol officers in the area spotted him, thought he looked "worried," and grew suspicious because the bushes on Hippie Hill are known for illicit drug activity. As the patrolmen began to approach Cornell, but before they reached him or said anything to him, he resumed his run. The officers gave chase, joined in pursuit by two other officers who responded to a call for backup. One of the officers, with his gun drawn, eventually caught up to Cornell on a trail in some nearby woods.

Cornell claims he had no idea he was being chased or that the officers wished to speak with him. On the trail, he says he heard a shout from behind, "I will shoot you," and looked over his shoulder to see a dark figure pointing a gun at him. He darted away, ultimately finding what he thought was refuge with a police officer awaiting his arrival some distance away at the top of a stairway in AIDS Memorial Grove. But to his surprise when he arrived there, that officer ordered him to the ground. He was arrested at gun-point and searched, taken in handcuffs to a stationhouse for interrogation, and eventually to a hospital for a drug test, which was negative.

In the meantime, a team of officers went back to Golden Gate Park, spoke to people who had seen Cornell that morning, and conducted a search of the areas where he was known to have been, and of his parked truck. No evidence of involvement with drugs turned up, and after nearly six hours in custody, Cornell was released. As he was leaving the stationhouse, he was given a criminal citation for evading arrest in violation of Penal Code section 148. Other than cursory questioning by the officers who issued the citation, no one in a position of higher authority ever interviewed him or asked for his side of the story. Cornell was never prosecuted, but he lost his job as a result of the arrest and citation.

To recover for the damage done to him, Cornell sued the four arresting officers, the Chief of Police, and the City and County of San Francisco. Following phase one of a bifurcated jury trial on special verdict forms, the trial court, relying on findings of fact by the jury in the initial phase, determined that Cornell was arrested without probable cause, thereby establishing liability for false arrest, and prompting the defense to stipulate to liability for negligence. In phase two, the jury returned a verdict for Cornell on two remaining claims, tortious interference with economic advantage, and violation of Civil Code section 52.1 ( Section 52.1 ), awarding total damages of $575,231. Following trial, the court added $2,027,612.75 in attorney's fees and costs on the Section 52.1 claim.

17 Cal.App.5th 772

These consolidated appeals are from the ensuing judgment and the award of attorney's fees and costs. The appellants argue 1) as a matter of law, the jury's phase one findings do not support the trial court's determination that probable cause was lacking, 2) the trial court should have declared a mistrial when the jury deadlocked on one of 18 questions put to it in the phase one special verdict form, 3) the trial court failed to address their argument that, under Penal Code section 847, subdivision (b), they are immune from claims for

225 Cal.Rptr.3d 360

false arrest, and 4) even if the verdict on the tort claims is upheld, the Section 52.1 verdict and accompanying award of fees and costs must be reversed because there was insufficient evidence to submit that claim to the jury.

Seeing no error, we affirm.

I. BACKGROUND

A. The Evidence at Trial

In July 2010, Bret Cornell, a recent graduate of the police academy employed by the San Francisco Police Department as a field officer trainee, went for a morning jog in Golden Gate Park at around 7:00 a.m., after finishing a night shift. He was dressed in gray canvas pants cut off at mid-ankle, a plaid fleece jacket over a dark t-shirt, and running shoes. After running a considerable distance, at around 8:00 a.m., he ran across Sharon Meadow and stopped to rest at the top of Hippie Hill, just as a police cruiser drove through the trees up to the crest of the hill along a pedestrian pathway. He looked at the car, and not wanting to interfere with whatever the officers were doing, walked down to the bottom of the hill.1

The two uniformed officers in the cruiser, David Brandt and Richard "Brett" Bodisco, considered Hippie Hill to be a high crime area. Both officers had made numerous narcotics arrests there, mostly involving drug transactions in the bushes, and there had been a homicide in the park a few days earlier. According to Officers Brandt and Bodisco, they drove up the pathway to gauge the reaction of people on the other side of the crest who could not see them coming. Cornell, a stranger to the officers, glanced at their car when they came into view, and then looked away. Cornell was by himself, not talking to anyone, had nothing in his hands, and was not doing anything specific to arouse suspicion. Officer Brandt described Cornell as having a

17 Cal.App.5th 773

"clean-cut" look, which he said was consistent with someone who was a recent parolee.2 Because Cornell appeared to be "worried" in their presence, Officers Brandt and Bodisco turned their car toward him and decided to initiate a consensual encounter. They did not activate their lights, or say anything to him over their loudspeaker.

As the officers turned toward Cornell, and as he walked away from them, headed downhill, he looked back briefly in their direction and then began running. With their suspicions aroused, the officers decided to chase Cornell and detain him. Officer Bodisco jumped out of the car and made a radio call for backup to assist in setting up a perimeter to cut Cornell off from any escape. The call, which drew the assistance of two more uniformed officers, Jesse Farrell and Sergeant Wallace Gin, included a description of Cornell and the direction he was headed, but no other details. When Officer Bodisco's call for backup went out, the police dispatcher asked "What's the want?" Officer Bodisco responded, simply, "[R]unning." According to Officer Brandt, the call gave no specifics because at that point "we didn't have anything specific." Surveying the area from the top of the hill

225 Cal.Rptr.3d 361

to see where Cornell went, Officer Bodisco testified he saw Cornell go off path through some bushes, reappearing below the hill without his plaid jacket and wearing only a dark shirt, which the officers took to be an attempt to throw them off his track.

When Cornell left Hippie Hill, he was unaware the officers wanted him to stop. His explanation for discarding his fleece jacket was that, after an hour's run, he was feeling hot. Having unsuccessfully tried to tie his fleece jacket around his waist while running at an earlier point on his route, he folded it and placed it on a tree stump to retrieve later. He said he had done that before and had no problem with anyone taking it, and even if someone did take it, the garment was inexpensive and easily replaceable. Once the officers caught sight of Cornell from their vantage point on Hippie Hill, Officer Bodisco set out after him on foot. Officer Brandt, still in the cruiser, drove down and around the hill, past some tennis courts, and along nearby Bowling Green Drive. As he drove, Officer Brandt stopped to ask two people along the way if they had seen someone matching Cornell's description; one person claimed to have seen someone running near the tennis courts, and another said he had heard some rustling in bushes up a winding dirt trail nearby.

Continuing in the direction these park users pointed out, Officer Brandt's search took him to the bottom of a trail known as the High Path, a dirt pathway lined on both sides by trees and brush, leading up a hill beyond Bowling Green Drive at the entrance to the AIDS Memorial Grove. Officer

17 Cal.App.5th 774

Farrell arrived and joined Officer Brandt at the bottom of the High Path, and the two of them began proceeding up the trail, with Officer Brandt in the lead. Officer Brandt described the trail as dark and having a "cave[-like] appearance." He unholstered his gun at this point and held...

To continue reading

Request your trial
193 cases
  • People v. Kaufman, D070902
    • United States
    • California Court of Appeals Court of Appeals
    • November 16, 2017
  • Schmid v. City and County of San Francisco
    • United States
    • California Court of Appeals Court of Appeals
    • February 1, 2021
    ...order to protect the peaceable exercise or enjoyment of the right or rights secured.’ " ( Cornell v. City and County of San Francisco (2017) 17 Cal.App.5th 766, 791, 225 Cal.Rptr.3d 356 ( Cornell ) [referencing former subd. (a) of Civ. Code, § 52.1 ].) Private parties may bring Bane Act cla......
  • S.T. v. City of Ceres
    • United States
    • U.S. District Court — Eastern District of California
    • August 30, 2018
    ...the arrestee's right to freedom from unreasonable seizure.’ " Reese , 888 F.3d at 1043 (quoting Cornell v. City & County of San Francisco , 17 Cal. App. 5th 766, 801, 225 Cal.Rptr.3d 356 (2017) ). A plaintiff bringing a claim under the Bane Act relating to an excessive force claim must show......
  • Scalia v. Cnty. of Kern
    • United States
    • U.S. District Court — Eastern District of California
    • April 10, 2018
    ...by threats, intimidation or coercion has been the source of much debate and confusion." Cornell v. City & County of San Francisco , 17 Cal. App. 5th 766, 801, 225 Cal.Rptr.3d 356 (2017), as modified (Nov. 17, 2017), review denied (Feb. 28, 2018) (alterations and quotation marks omitted); se......
  • Request a trial to view additional results
2 books & journal articles
  • Search and seizure
    • United States
    • James Publishing Practical Law Books California Drunk Driving Law - Volume 1-2 Volume 1
    • March 30, 2022
    ...value. U.S. v. Montero-Camargo (9th Cir. 2000) 208 F.3d 1122, 1136. See also, Cornell v. City and County of San Francisco (2017) 17 Cal.App.5th 766. In U.S. v. Arvizu (2002) 534 U.S. 266, the officer thought the driver appeared “rigid and nervous.” The defendant motorist was stopped while d......
  • Table of cases
    • United States
    • James Publishing Practical Law Books California Drunk Driving Law - Volume 1-2 Appendices
    • March 30, 2022
    ...10:53.1, 10:54.3 Cornelius v. Superior Court (1972) 25 Cal.App.3d 581, 585, §7:88.2 Cornell v. City and County of San Francisco (2017) 17 Cal.App.5th 766, §7:36 Cornforth v. Dept. of Motor Vehicles (1970) 3 Cal.App.3d 550, Appendix E Correctional Peace Officers Assn. v. State Personnel Boar......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT