Schmidlin v. City of Palo Alto, H026841.

Citation157 Cal.App.4th 728,69 Cal.Rptr.3d 365
Decision Date04 December 2007
Docket NumberNo. H026841.,H026841.
CourtCalifornia Court of Appeals
PartiesMichael SCHMIDLIN, Plaintiff and Appellant, v. The CITY OF PALO ALTO et al., Defendants and Appellants.

RUSHING, P.J.

Plaintiff Michael Schmidlin brought this action against the City of Palo Alto and several of its police officers, alleging that the officers committed various constitutional and common-law torts when they detained and arrested him for public drunkenness. After various claims were dismissed on legal grounds, a jury found that officers had used excessive force against plaintiff, but rejected claims of unlawful arrest and fabrication of police reports. Both parties appeal on numerous grounds. We find no reversible error, and affirm the judgment.1

BACKGROUND

According to plaintiff, he and two companions, Jim Walker and Bill D'Honau, were walking along a downtown Palo Alto street in the early morning hours of March 29, 1997, when they were accosted by two young women in a car driving the wrong way on the street. As plaintiff tried to persuade the women not to drive in their condition, defendant Bertrand Milliken, a Palo Alto police officer, arrived in his patrol car. Thinking the women were about to be arrested, plaintiff began to walk away. His companions, however, remained behind to watch, so plaintiff turned and waited for them near a sign. Plaintiff and his companions testified that plaintiff was not drunk and did not appear drunk.

Milliken testified that plaintiff staggered drunkenly to the sign, where he appeared to be urinating. He approached plaintiff to investigate. Plaintiff was not urinating, but Milliken asked him for identification anyway. Plaintiff balked at this, and told Milliken he had left his identification in his truck. Plaintiff and his companions told Milliken they were on their way home. Milliken conceded that they told him they were just walking down the street a few blocks and that Walker and D'Honau said they were with plaintiff. Milliken testified that plaintiff appeared drunk, and that soon after their exchange began, plaintiff became hostile, put his face close to Milliken's, and seemed to be going to fight him. According to Milliken, plaintiff started to walk away several times, whereupon Milliken ordered him to remain. Plaintiff and his companions denied this, though Walker testified that plaintiff averted his gaze at one point and plaintiff testified that he stepped back as Milliken got extremely close to him.

At least four and half minutes after approaching plaintiff, Milliken placed a nonurgent call for backup. In response, defendant Officer Martin drove to the scene. When he arrived, Milliken told plaintiff he was under arrest, Without warning, according to plaintiff and his companions, the officers grabbed plaintiffs arms and threw him face-first to the ground, both landing on top of him. Plaintiff testified that Martin then began punching him, grabbing his head by the hair and jamming it into the sidewalk, producing cuts and abrasions on his face. A third officer, defendant Trujillo, ran up and hit plaintiff on the legs with a baton.

Plaintiffs companions Williams and D'Honau complained at the scene about his treatment, and a police sergeant, defendant Carole Baldwin, arrived to speak to them. Although her report indicated that they were upset about officers' treatment of plaintiff, they testified that she attributed to them statements they did not make, and omitted statements they did make.

After plaintiffs arrest, officers took him to Stanford Hospital for an assessment of his injuries. Plaintiff said that officers refused to let him use the bathroom at this time, but defendant Milliken told plaintiff he could use the bathroom if he would provide a urine sample. Plaintiff agreed, although he did not want to provide a urine sample because, he testified, he feared officers might tamper with it. After using the bathroom, he presented a sample cup filled with water. When he went to the bathroom a second time, defendants Milliken and Martin followed him and, according to plaintiff, threw him to the floor and elbowed and kneed him.

Plaintiff was subsequently charged with a number of misdemeanors, as more fully described below. (See pp. 373-374, post.) During the course of the criminal prosecution he made a motion to suppress evidence, alleging that Officer Milliken had lacked sufficient grounds to conduct an investigatory detention, and that all evidence flowing from that detention should be excluded. That motion was denied, and plaintiff was tried in January 1999 on charges of resisting arrest, public intoxication, false identification, assault on a police officer (Martin), and battery on a police officer (Milliken). The jury found him guilty of false identification and not guilty of public drunkenness and assault, but failed to reach a verdict on resisting arrest and battery. Plaintiff successfully moved for a new trial on the false identification charge based on instructional error and juror misconduct. After announcing an intention to retry the remaining charges, the prosecutor dismissed them on the eve of trial.

On December 12, 2000, plaintiff brought this action against Officers Milliken, Martin, Trujillo, and Baldwin, the Palo Alto Police Department, and the City of Palo Alto. Defendants brought a motion for summary judgment, arguing among other things that the denial of plaintiffs suppression motion precluded him from pursuing his claims for unlawful detention and arrest, and that the statute of limitations barred the claims for excessive force. The court denied the motion.

The matter came on for trial, and after proceedings described more fully below, the jury found that Officers Milliken, Martin, and Trujillo had violated plaintiffs constitutional rights by using excessive force against his person. The jury rejected his claims of false arrest and fabrication of police reports. The trial court denied defendants' motion for judgment notwithstanding the verdict. Defendants, followed by plaintiff, filed timely notices of appeal.

I. Defendants' Appeal
A. Sufficiency of Evidence of Excessive Force

Defendants assert that the evidence was insufficient to support the jury's finding of excessive force. At least we so construe their brief, which alludes in passing to the insufficiency of the evidence, but which is actually devoted almost entirely to rearguing the facts. This approach disregards the fundamental principles governing appellate review of factual findings, and the "daunting burden" those principles impose upon an appellant who challenges the sufficiency of the evidence to support a judgment. (In re Marriage of Higinbotham (1988) 203 Cal.App.3d 322, 328-329, 249 Cal.Rptr. 798.) `"The rule is well established that a reviewing court must presume that the record contains evidence to support every finding of fact, and an appellant who contends that some particular finding is not supported is required to set forth in his brief a summary of the material evidence upon that issue. Unless this is done, the error assigned is deemed to be waived. [Citation.] It is incumbent upon appellants to state fully, with transcript' references, the evidence which is claimed to be insufficient to support the findings.' [Citations.]" (In re Marriage of Fink (1979) 25 Cal.3d 877, 887, 160 Cal.Rptr. 516, 603 P.2d 881.)

Defendants state that "even assuming the version of events most favorable to [plaintiff], the force used to arrest him and to control him while in custody was not constitutionally excessive." But defendants nowhere set forth the version of events most favorable to plaintiff, although doing so is part of their fundamental obligation to this court, and a prerequisite to our consideration of their challenge. "A party who challenges the sufficiency of the evidence to support a particular finding must summarize the evidence on that point, favorable and unfavorable, and show how and why it is insufficient. [Citation.]" (Roemer v. Pappas (1988) 203 Cal. App.3d 201, 208, 249 Cal.Rptr. 743, italics added.) Where a party presents only facts and inferences favorable to his or her position, "the contention that the findings are not supported by substantial evidence may be deemed waived." (Oliver v. Board of Trustees (1986) 181 Cal.App.3d 824, 832, 227 Cal.Rptr. 1.)

In addition to neglecting these requirements, defendants' brief pervasively alludes to factual matters unaccompanied by record citations.2 It is the duty of counsel to refer us to the portion of the record supporting his contentions on appeal. (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 589. p. 624; Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 545, 35 Cal.Rptr.2d 574; Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 75 Cal.Rptr.2d 27; see People v. Hyatt (1971) 18 Cal.App.3d 618, 624, 96 Cal.Rptr. 156 [where brief fails to specify portions of record supporting appellant's factual assertions, record is presumed to support trial court's rulings].) "It is not incumbent upon this court to search a record of this character to determine a point raised in this manner." (Erro v. City of Santa Barbara (1932) 123 Cal.App. 508, 513, 11 P.2d 890; see In re Marriage of Fink, supra, 25 Cal.3d at p. 888, 160 Cal.Rptr. 516, 603 P.2d 881 ["It is neither practical nor appropriate for us to comb the record on [the appellant's] behalf'].)

Even overlooking these deficiencies, we find defendants' challenge to the sufficiency of the evidence unpersuasive. Defendants assert as a "paramount and indisputable fact" that when officers threw plaintiff to the ground he was "so...

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