Shull v. Shaw, C054261 (Cal. App. 10/31/2008), C054261

• Decision Date: 31 October 2008
• Docket Number: C054261
• Parties: JULIEANNE SHULL, Plaintiff and Appellant, v. MARC SHAW, as California Highway Patrol Officer, etc., et al., Defendants and Respondents.
• Court: California Court of Appeals Court of Appeals

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JULIEANNE SHULL, Plaintiff and Appellant, v. MARC SHAW, as California Highway Patrol Officer, etc., et al., Defendants and Respondents.

C054261

Court of Appeals of California, Third Appellate District, Sacramento

October 31, 2008

Not to be Published

Appeal from the Sup. Ct. No. 05AS01501.

MORRISON, J.

The California Highway Patrol (CHP) arrested Julieanne Shull for conspiring to demonstrate without a permit, based on her apparent actions in concert with a "tree sitter" in Capitol Park. She was taken to the Sacramento County Jail where deputies allegedly abused her. Shull sued the CHP and Sacramento County and their employees on a number of theories. The trial court (Balonon, J.) denied her summary judgment motion and granted the CHP's summary judgment motion and Shull timely appealed as to the CHP defendants.

At trial against the Sacramento County defendants, Shull won a jury verdict. When the trial court (Hersher, J.) denied her motion for attorney fees, she filed another appeal, still pending. (Shull v. Sacramento County, C056456.)

We shall affirm summary judgment in favor of the CHP defendants because the undisputed facts show that the CHP officers had probable cause to arrest Shull, they were under no obligation to cite her and release her, instead of transporting her to jail, and her subsidiary claims lack merit.

I. Standard of Review

In reviewing summary judgment motions we normally apply a three-step test in which we first describe the pleadings to determine the relevant issues, then determine whether the movant showed a prima facie case—meaning the opponent cannot prove a necessary element or that all the elements of a defense exist— and finally determine whether the opposition raises triable factual issues. (Lackner v. North (2006) 135 Cal.App.4th 1188, 1196 (Lackner); Claudio v. Regents of University of California (2005) 134 Cal.App.4th 224, 229.) We construe the movant's evidence narrowly and the opponent's evidence broadly. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.)

Because Shull, as the appellant, must show reversible error, we limit our review to issues properly presented. (Lewis v. County of Sacramento (2001) 93 Cal.App.4th 107, 116; Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115-1116.)

In this case both parties moved for summary judgment and in part cross-incorporated their papers, leading the trial court to address the two motions as an omnibus motion. In view of this procedure we will slightly modify the normal three-step test. We will first describe the pleadings. Then we will describe the CHP's undisputed facts and the disputes to those facts raised by Shull, as well as the facts she raised in her motion. Then we will examine each of Shull's legal claims to determine if any triable issue of fact remains, whether raised in opposition to the CHP's motion or raised in Shull's motion.

II. The Trial Court Papers

A. Pleadings

The complaint confuses causes of action with legal theories and remedies and packs multiple theories into captioned claims, all of which makes it less understandable. (See Uhrich v. State Farm Fire & Cas. Co. (2003) 109 Cal.App.4th 598, 605; Smyth v. USAA Property & Casualty Ins. Co. (1992) 5 Cal.App.4th 1470, 1473.)

The complaint names as defendants CHP employees Mark [sic] Shaw, James Mann, and Greg Daniels. On appeal Shull does not contest the dismissal of other employees, though in her summary judgment papers she moved to substitute Dave Wilson and Doug Lyons as Doe defendants. It is not clear from the record on appeal whether her substitution motion was granted.

The complaint states that on February 5, 2004, Shull's "acquaintance" climbed a tree in Capitol Park, "and unfurled a banner [] to draw attention to legislation that would protect California's last remaining old growth forests and habitat. The demonstration drew the attention of media, police, fire officials, and members of the public."

Shull videotaped "the protest, fielded some inquiries from press, police, and members of the public, and provided some police and media with the cell phone number of the man in the tree so they could communicate directly with him."

In purported "retaliation for her exercise of free expression," the CHP falsely arrested her "on charges of felony conspiracy to commit misdemeanor(s)—to wit, the `crimes' of demonstrating without a permit and trespass carried out not by her, but by the man in the tree."

Shull was "rendered" to "personnel in the [Sacramento County Jail], who strip-searched her, assaulted and injured her, and then held her for approximately five days, . . . until a court mercifully set her free."

Shull's first claim (false arrest and imprisonment), as to the CHP alleges she was falsely arrested "and falsely imprisoned in County Jail," and the CHP wrongfully failed "to cite and release" her. It also alleges "unreasonable conditions" of detention, but only as to Sacramento County.

Her third claim (retaliation and abuse of process) alleges the above wrongful acts were done in order to retaliate against Shull for exercising her expressive rights.

Her sixth claim (Bane Act) alleges the above acts were based on "threats, intimidation and coercion."

Her seventh claim (infliction of emotional distress) alleged the above acts were outrageous, "including without limitation" "the strip search" and the "unnecessarily long pre-arraignment imprisonment of her."

Her tenth claim (negligence) included allegations of improper training, resulting in the above acts.

Although not stated as a separate claim, the complaint also alleged entitlement to injunctive relief.

In the trial court Shull conceded her second claim (strip-searching) as to the CHP, and conceded that her eleventh claim (respondeat superior) is merely "a theory of liability[.]" On appeal, she has abandoned her fourth (religious freedom), fifth (trespass to chattels), eighth (failure to intervene), and ninth (conspiracy) claims.

Shull failed to include the CHP's answer in the record, thus violating her duty, as the appellant, to provide an appropriate record. (See Mountain Lion Coalition v. Fish & Game Com. (1989) 214 Cal.App.3d 1043, 1051, fn. 9.) The answer is a critical document because the first step of any summary judgment analysis is to define the pleaded issues. (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381.) However, in this case we will overlook this problem and assume the CHP denied Shull's allegations and pleaded appropriate defenses.

B. Facts from the CHP's Motion

The following facts were not disputed except as noted:

On February 5, 2004, a man named Lewis (sometimes referred to as "Bear," or as Wessel Patrick Lewis in the record) climbed a tree in Capitol Park. CHP Officer Mann saw Shull videotaping "and communicating with the male suspect in the tree, using `hooting' and other non-verbal sounds," and speaking to the media; he also heard Shull "tell the media that she had driven down with the male suspect from Arcata, California." Shull disputed that she told Mann that she was "not with" Lewis, but conceded that she communicated with Lewis "with `hooting' and `chirping' sounds," videotaped the tree and gave Lewis's cell number to the media; she also conceded that Mann knew she had driven with Lewis from Arcata that day.

In her dispute to the claimed fact that she told Officer Mann that she was not "with" Lewis, Shull asserted in part:

"[D]efendants acknowledge that plaintiff informed defendant [CHP] Officer Teel that Mr. Lewis had a cell phone with him; that she knew the man in the tree as `Bear'; that he was her friend and had positioned himself there in protest; and that she shouted up to him `[t]hey are calling you on your phone!'"

Thus, although Shull disputed that she misled the CHP about her relationship with "Bear," she confirmed she knew him well enough to use bird calls to communicate with him, knew his cell number, and helped him communicate with the media.

Shull conceded that State Capitol groundskeepers "observed [Shull] help Lewis by passing a duffel bag to him in the tree." She also conceded that the groundskeepers told the CHP that she "had helped Lewis in the tree by passing him his personal property[,]" but raised a discovery claim, not relevant now, and disputed the implication that she had been seen helping Lewis get into the tree.

Shull did not dispute that she and Lewis had been seen by a groundskeeper as they "walked around Capitol Park together . . . looking at trees," but she alleged Capitol Park was a place designed for people to look at trees and disputed the implication that she had been casing the park with Lewis to find a suitable tree for him to climb.

The CHP alleged Shull was arrested for a misdemeanor conspiracy charge and Shull did not dispute this.

C. Facts from Shull's Motion

Shull's statement of purported undisputed facts was explicitly designed to establish two things: First, "DEFENDANTS FALSELY SUBJECTED MS. SHULL TO CUSTODIAL ARREST, IN VIOLATION OF PLAINLY SETTLED CALIFORNIA LAW WHICH REQUIRES THEM TO HAVE CITED AND RELEASED HER," and second, "DEFENDANTS LACKED PROBABLE CAUSE TO ARREST MS. SHULL, WHO BROKE NO LAWS, AND WAS ENGAGED IN PROTECTED FIRST AMENDMENT ACTIVITY AT THE TIME OF HER ARREST."

The CHP did not warn Shull before arresting her and after the arrest "obtained proof" of her identity from her Washington driver's license. She did not struggle or resist arrest. The CHP did not cite and release her because it thought she would continue the offense if released.

The CHP disputed whether Shull falsely told officers she "`was not with Bear.'"

Shull tendered the following fact and later alleged that CHP Officer Mann saw this behavior when he "arrived on the scene" at about 2:37 that afternoon:

"Ms. Shull supported Bear by taking video and still photos of the scene, explaining to observers and members of the media why he was in the tree, handing out literature,...