Salazar v. Upland Police Dept.

• Decision Date: 10 March 2004
• Docket Number: No. E033447.,No. E032557.,E032557.,E033447.
• Citation: 11 Cal.Rptr.3d 22,116 Cal.App.4th 934
• Court: California Court of Appeals Court of Appeals
• Parties: Gelza SALAZAR, Plaintiff and Appellant, v. UPLAND POLICE DEPARTMENT et al., Defendants and Respondents.

11 Cal.Rptr.3d 22

116 Cal.App.4th 934

Gelza SALAZAR, Plaintiff and Appellant, v. UPLAND POLICE DEPARTMENT et al., Defendants and Respondents.

No. E032557.

No. E033447.

Court of Appeal, Fourth District, Division 2

March 10, 2004

Certified for Partial Publication^*

Rehearing Denied April 1, 2004

Review Denied June 23, 2004

Law Offices of Ruben Salazar and Ruben Salazar, Fontana, for Plaintiff and Appellant.

Ferguson, Praet & Sherman, Shane D. Sullivan and Larry J. Roberts, San Bernardino, for Defendants and Respondents.

OPINION

GAUT, J.

This action arises from a road rage incident in which an Upland Police Department officer arrested plaintiff Gelza Salazar for felony assault with a deadly weapon, a car.¹ The district attorney ultimately filed misdemeanor charges against her for hit-and-run² and reckless driving.³ The trial court dismissed the criminal charges after plaintiff stipulated to there being probable cause for her arrest. Meanwhile plaintiff sued defendants in this action for arresting her and filing criminal charges against her.

Defendants City of Upland, Upland Police Department, Lieutenant Rod Lines, Police Chief Martin E. Thouvenell, officers Steven Adams, Jeff Mendenhall, and John Echevarria, police dispatcher Liz Nutte, and police dispatcher supervisor Graham Hendrickson (defendants) moved for summary judgment or, alternatively, summary adjudication on the grounds plaintiff stipulated there was probable cause for her arrest and defendants were immune from liability.

Plaintiff appeals judgment against her, entered after the trial court granted defendants summary judgment. Plaintiff raises numerous grounds challenging summary judgment, including that there was no probable cause for plaintiff's arrest; the probable cause stipulation was inadmissible and was not sufficient to support summary judgment; defendants failed to meet their burden of establishing a defense to each of the 10 causes of actions; plaintiff's claims are not barred by governmental immunity; triable issues of fact exist; and defendants' summary judgment motion failed to address the seventh cause of action for civil rights violations against defendant officers Echevarria, Lines, Adams, and Thouvenell.

We conclude the probable cause stipulation is admissible and establishes there was probable cause for plaintiff's arrest. In addition, with the exception of the seventh cause of action, the trial court appropriately granted summary judgment as to each cause of action based on governmental immunity.

As to the seventh cause of action, the trial court erred in granting summary judgment since it was not addressed in defendants' motion for summary judgment. As a consequence, summary judgment is reversed as to defendant officers Echevarria, Lines, Adams, and Thouvenell. Summary judgment is affirmed as to the remaining defendants, City of Upland, Upland Police Department, Jeff Mendenhall, Liz Nutte, and Graham Hendrickson.

In a separate appeal, consolidated with plaintiff's summary judgment appeal, plaintiff appeals from an order awarding defendants $20,476.50 in attorneys fees and $1,086.64 in costs. The trial court awarded fees and costs under Code of Civil Procedure section 1021.7 on the ground plaintiff's action was not maintained with reasonable cause.

Plaintiff contends the trial court did not have jurisdiction to decide defendants' motion for attorneys fees and costs, and the trial court denied plaintiff her rights to due process, equal protection, and a fair hearing. Plaintiff also complains the trial court abused its discretion in granting fees and costs under Code of Civil Procedure section 1021.7, and the award is against public policy and infringes plaintiff's first amendment right to petition the government for legal redress.

We reject plaintiff's contentions as meritless and affirm the award of fees and costs as to the City of Upland, Upland Police Department, Jeff Mendenhall, Liz Nutte, and Graham Hendrickson. But since we must reverse summary judgment as to the seventh cause of action against officers Echevarria, Lines, Adams, and Thouvenell due to defendants' failure to address the seventh cause of action in their summary judgment motion, we reverse the fees and cost award as to those defendants.

I. SUMMARY JUDGMENT APPEAL

A. Factual and Procedural Background

On February 28, 2001, at about 10:00 a.m., Larry Moxham rear-ended plaintiff after Moxham and plaintiff had became engaged in a brief bout of road rage. Plaintiff left the scene of the accident without giving Moxham her identifying information. Shortly thereafter, Upland Police Department Officer John Echevarria investigated the incident, took Moxham's statement, located plaintiff driving in her car, stopped her, took her statement, and based on plaintiff's and Moxham's statements, arrested plaintiff for assault with a deadly weapon, a car. Plaintiff was booked for the assault offense and, later that day, plaintiff was released on $50,000 bail.

Based on Echevarria's investigation of the incident, he wrote a declaration of probable cause in which he stated he was informed that plaintiff purposely slammed on her brakes, causing Moxham's truck to rear-end her vehicle. Echevarria further stated in the declaration that, after interviewing Moxham and plaintiff, he concluded the collision was due to plaintiff being upset because she believed Moxham had cut her off.

Rather than prosecuting plaintiff for felony assault with a deadly weapon, on March 14, 2001, the district attorney filed misdemeanor charges against plaintiff for hit-and-run and reckless driving.

On May 15, 2001, plaintiff filed a government claim with the City of Upland claiming, among other things, that defendants fabricated probable cause for her arrest, falsely arrested her based on her ethnicity and sex, attempted to cover up defendants' fabrication and false arrest, inadequately investigated the incident, pursued criminal charges against her despite being apprised they were false, and committed defamation, invasion of privacy, false imprisonment, violation of her civil rights, battery, negligent hiring, training, supervision, and discipline of defendant officers, negligent handling of her 911 call, and negligent failure to investigate her police misconduct complaint. The city rejected plaintiff's claim on July 9, 2001.

Plaintiff made essentially the same allegations in her civil lawsuit filed on September 7, 2001, against defendants. Plaintiff's complaint contains the following causes of actions: (1) false arrest/imprisonment; (2) battery, arising from being hand-cuffed and arrested; (3) defamation, based on defendants accusing plaintiff of committing the felony of assault with a deadly weapon; (4) invasion of privacy (false light) by publicly disclosing that plaintiff had committed the felony of assault with a deadly weapon by slamming on her brakes and damaging another's vehicle; (5) abuse of process; (6) intentional infliction of emotional distress; (7) civil rights violation; (8) negligence per se, consisting of falsely arresting plaintiff without probable cause in violation of Penal Code section 836, subdivision (a)(3); (9) negligent failure to perform mandatory duties under Government Code section 815.6; and (10) negligent acts and omissions under Government Code section 815.2.

In November plaintiff filed Doe amendments adding police officers Steve Adams and Jeff Mendenhall as Doe defendants.

While appearing in criminal court on November 29, 2001, with both her criminal attorney and her civil attorney (plaintiff's husband) on a Pitchess motion,⁴ plaintiff authorized a probable cause stipulation, which her criminal attorney signed on her behalf. The stipulation states plaintiff and the district attorney stipulated "5. That probable cause existed for Officer Echevarria to stop [Gelza Salazar], based on the facts that were given to him by [Gelza Salazar] and Moxham on February 28, 2001, and to arrest her on the counts as charged. [¶] 6. That Defendant, Gelza Salazar was ultimately charged with violating Vehicle Code Sections 20002(a) and 23103(a)." After the parties executed the stipulation, in accordance with the prosecutor's recommendation the trial court dismissed criminal charges against plaintiff under Penal Code section 1385, in the interests of justice.

In December 2001, defendants removed the civil action to the federal court and, in January 2002, on plaintiff's motion, the federal court remanded the case back to the state court on the ground the civil rights cause of action, according to plaintiff, was a state statutory claim, not a federal claim.

In February 2002, plaintiff filed Doe amendments adding police dispatchers Liz Nutte and Graham Hendrickson as Doe defendants.

On July 3, 2002, defendants filed a motion for summary judgment or, alternatively, for summary adjudication on the grounds plaintiff had stipulated there was probable cause for her arrest and defendants were immune from liability. Plaintiff opposed the motion and, following a hearing on the motion, the trial court granted defendants summary judgment based on the probable cause stipulation and governmental immunity.

B. Procedural Issues^**

C. Meeting Summary Judgment Burden of Proof

Plaintiff contends defendants failed to meet their initial burden of showing that each of plaintiff's 10 causes of action has no merit or that there is a complete defense.

1. Summary Judgment Standard of Review

On appeal from a summary judgment entered in favor of the defendant, we review the trial court's decision de novo, applying the rule that a defendant is entitled to summary judgment if the record establishes as a matter of law that either none of the plaintiff's asserted causes of action can prevail or the plaintiff cannot establish one or more elements.¹⁶

"The first step of the review begins with an analysis of the pleadings, because `[t]he pleadings define the issues to be considered on a motion for summary...