Ritschel v. City of Fountain Valley

• Decision Date: 28 February 2006
• Docket Number: No. G034264.,G034264.
• Citation: 137 Cal.App.4th 107,40 Cal.Rptr.3d 48
• Court: California Court of Appeals
• Parties: Darrell Vincent RITSCHEL, Plaintiff and Appellant, v. CITY OF FOUNTAIN VALLEY et al., Defendants and Respondents.

40 Cal.Rptr.3d 48

137 Cal.App.4th 107

Darrell Vincent RITSCHEL, Plaintiff and Appellant, v. CITY OF FOUNTAIN VALLEY et al., Defendants and Respondents.

No. G034264.

Court of Appeal, Fourth District, Division 3.

February 28, 2006.

Law Office of Daniel R. Shapiro and Daniel R. Shapiro, Riverside, for Plaintiff and Appellant.

Lee A. Wood & Associates, Lee A. Wood and Thomas E. Francis, Costa Mesa, for Defendants and Respondents.

OPINION

RYLAARSDAM, Acting P.J.

Claiming several police officers injured him when they used force to obtain a blood sample after his arrest for driving while under the influence of alcohol, plaintiff Darrell Vincent Ritschel sued defendants City of Fountain Valley and members of its police department. He alleged causes of action for violation of his civil rights under both federal and state law (42 U.S.C. § 1983 [section 1983]; Civ.Code, § 52.1, subd. (b)), plus state law claims, including assault and battery. In the first phase of a trifurcated trial, the court found the individual defendants entitled to qualified immunity as to the section 1983 claim. Based on primarily the same evidence, the court granted defendants' motion for nonsuit and dismissed the remaining state law counts. Plaintiff appeals, challenging the decision on several procedural and substantive grounds. Finding no error, we affirm.

INTRODUCTION

After filing this appeal, plaintiff submitted a notice of his election to proceed on an appendix under California Rules of Court, rule 5.1 without a reporter's transcript. The one-volume appendix he prepared contains only the second amended complaint, court minute orders, his moving papers on a motion for summary judgment/adjudication that includes declarations, the parties' briefs on the qualified immunity defense, defendants' motion for nonsuit, transcripts of two police department recordings from the night of plaintiff's arrest, and portions of depositions from four police officers.

Defendants partially cured the defective record by augmenting it to include a reporter's transcript of the trial's first phase and the argument on the motion for nonsuit. However, the present record fails to contain some essential materials, including exhibits admitted at trial and relied on by the court in makings its rulings. Other missing items include several police reports, an audiotape of plaintiff's initial detention, both the audio and videotapes of the blood withdrawal, and a copy of the police department's policy on the use of force to obtain a blood sample from an arrestee. The limited scope of the record is further aggravated by the fact plaintiff's opening brief relies on the contents of declarations submitted on the pretrial motion for summary judgment, which were apparently never introduced at trial, and contains several misstatements of the facts.

Our summary of the facts and analysis of the issues is based only on the various documents properly included in the appellate record.

FACTUAL AND PROCEDURAL BACKGROUND

Robert Gallaugher, a Fountain Valley police officer, stopped plaintiff late one evening after observing him violate several traffic laws. Plaintiff displayed symptoms of intoxication. He admitted drinking two beers that day, plus taking some pain medication for a back injury the previous day. In his arrest report, Gallaugher stated plaintiff performed poorly on the lateral gaze nystagmus test and had a distorted perception of time. Gallaugher began conducting field sobriety tests, but stopped the procedure during the first test when plaintiff complained of pain and began shaking. Plaintiff did not have a driver's license and claimed he had left it in another vehicle. The police eventually found a suspended Nevada driver's license in plaintiff's wallet.

A second police officer, defendant Robert Sweaza, arrived with a Preliminary Alcohol Screening breath testing device (PAS). Gallaugher and Sweaza testified at their depositions that, before administering the test, one of them read a statement to plaintiff informing him that he was being requested to take the PAS test and he could subsequently be asked to take a blood alcohol test. Plaintiff denied being told he had a choice on whether to take the test. Plaintiff admitted telling Gallaugher and Sweaza that he had suffered a punctured lung as a result of a stabbing, but claimed he had an "almost 100 percent recovery" from the injury.

The officers testified that plaintiff failed to cooperate during the administration of the PAS test. They claimed he pretended to blow into the machine and, contrary to their instructions, placed his tongue over the mouthpiece. Gallaugher testified plaintiff also "pretended to cough and wheeze...." Plaintiff admitted the officers said they thought he was being uncooperative, but testified they did not give him any directions on how to perform the PAS test. He claimed Sweaza "yanked the ... device out of [his] mouth" "several times" and accused him of "putting ... [his] tongue in the end of the device." After six attempts, the police obtained two acceptable results indicating a blood alcohol content of .092 and .095, respectively.

Gallaugher arrested plaintiff for driving while intoxicated and driving with a suspended license. The police station had equipment to conduct a breath test, but Gallaugher testified he decided not to offer plaintiff a choice between the blood and breath tests. Plaintiff claimed he asked to take a breath test, but the police refused to administer it because of his "[b]reathing problems...."

A transcript of the blood withdrawal audiotape reflects defendant Dan Llorens, the on-duty watch commander, made several unsuccessful attempts to obtain plaintiff's voluntary submission to the withdrawal of a blood sample. Llorens then asked plaintiff to stand up and place his hands behind his back. Plaintiff placed his hands inside the front of his shirt. Gallaugher, Sweaza, Llorens, plus a fourth officer, pulled his hands out of the shirt; plaintiff fell to the floor. After several minutes, the officers were able to handcuff plaintiff and sit him in a chair with his arms and hands behind the backrest while a technician withdrew a blood sample. Plaintiff alleged he suffered injuries to his back, face, and wrists, as well as emotional distress, because of the officers' actions.

Plaintiff was charged with driving while intoxicated and two other misdemeanor offenses. During trial, the prosecution amended the complaint to allege a charge of reckless driving. Plaintiff pleaded guilty to the latter charge and the prosecution dismissed the remaining counts.

Plaintiff then filed this lawsuit. The first cause of action sought damages under section 1983. It alleged defendants deprived him of the "rights ... guaranteed by the Fourth and Fourteenth Amendments to the United States Constitution" by "refus[ing] to give [him] an opportunity to choose whether to submit to a breath test, a urine test, or a blood test of his blood alcohol level, ... trapp[ing] and confin[ing him] in an area of the police station ... long beyond what was reasonably necessary to administer the breath test," and then physically "forc[ing] a blood draw" from him. Based on the same conduct, plaintiff alleged state law causes of action of false imprisonment, assault and battery, negligent employment, and violation of Civil Code section 52.1. Plaintiff claims he dismissed the false imprisonment and negligent employment causes of action at trial.

During the trial's first phase on the qualified immunity defense, the court received testimony from defendants' expert witness and from plaintiff. It also reviewed the arrest and investigation reports, deposition testimony of the officers, an audio recording covering part of Gallaugher's conversation with plaintiff during his initial detention, and audio and videotapes of the blood withdrawal conducted at the police station. At the completion of this phase, the court ruled defendants were entitled to qualified immunity as to the section 1983 count. It then directed the parties to brief the effect of this ruling on the state law causes of action. Subsequently, the court entered a minute order providing, "Defendant to submit written motion to dismiss...."

Defendants filed a motion for nonsuit and/or directed verdict. After reviewing the motion and plaintiff's opposition, plus allowing oral argument, the court granted the motion. The signed order declared: "It was undisputed that the facts and evidence ... supporting Plaintiff's State law claims ... were identical to the facts and evidence supporting his Federal Civil Rights claims under [title] 42 U.S.C § 1983.... Plaintiff was given an opportunity to advise the Court of additional facts and/or evidence ... which he intends to offer to support his State Law Claims during his case in chief. The Court determined that the proffered additional testimony consisted of an expert to impeach the testimony of Defendants' expert ... and was insufficient to support Plaintiff's burden of proof on the State Law Claims. The Court determined that Plaintiff had presented all the evidence he intended to present to the jury and that said evidence did not support his remaining claims."

DISCUSSION

The Nature of The Appeal

This appeal is from a signed order granting a motion for nonsuit. (Code Civ. Proc., § 581c.) Such an order constitutes a judgment of dismissal. (Code Civ. Proc., § 581d; Costa v. Regents of University of Cal. (1951) 103 Cal.App.2d 491, 494, 229 P.2d 867.)

Plaintiff initially attacks the judgment on two procedural grounds. First, he argues the trial court violated Code of Civil Procedure section 581c, subdivision (a) by granting nonsuit before he had made his opening statement in the jury phase of trial. But the granting of a nonsuit before opening statement is not reversible error if it is clear the plaintiff could not have prevailed even if he had presented his opening statement. (Atkinson v. Elk Corp. (2003) 109...