Susag v. City of Lake Forest, D038608.

Citation94 Cal.App.4th 1401,115 Cal.Rptr.2d 269
Decision Date08 January 2002
Docket NumberNo. D038608.,D038608.
CourtCalifornia Court of Appeals
PartiesRichard SUSAG et al., Plaintiffs and Appellants, v. CITY OF LAKE FOREST et al., Defendants and Respondents.

Jeffrey S. Benice, Irvine, for Plaintiffs and Appellants.

Franscell, Strickland, Roberts & Lawrence and S. Frank Harrell, Santa Ana, for Defendants and Respondents.


It is established that a person convicted of resisting or obstructing a peace officer (Pen.Code, § 148, subd. (a)) may not maintain an action for the violation of federal civil rights (42 U.S.C. § 1983 (section 1983)) based on the officers' conduct during the arrest, unless the conviction has been set aside through appeal or other postconviction proceeding. We hold here that for public policy reasons, relief from a conviction under Penal Code section 148, subdivision (a) is also a prerequisite of state law battery and related claims arising from the alleged use of excessive force during the arrest. Accordingly, we affirm the judgment for the defendants on plaintiff Cory Susag's claims. We also affirm the judgment certain defendants obtained on plaintiff Richard Susag's section 1983 and related state law counts, on the ground they had no physical contact with him, and on plaintiff Carol Susag's loss of consortium claim.1


The Susags operate an auto body shop in the City of Lake Forest (the City). On May 5, 1998, Christopher Thompson, a deputy sheriff for the County of Orange (the County), noticed that a car parked near the auto body shop had an expired registration. Deputy Thompson called for a tow truck, and, as he waited, Cory, Richard's son, approached him. Cory denied owning the car and left. However, after the car was hitched to the tow truck he returned with a set of keys and got into the driver's seat. Deputy Thompson ordered Cory out of the car several times, and Cory responded "you're not taking it" and "fuck you." Cory started the car and accelerated the engine.

Deputy Thompson pepper-sprayed Cory's eyes after he ignored additional orders to get out of the car. Apparently undeterred, he cursed at and pushed Deputy Thompson. Deputy Thompson called for assistance and then followed Cory into the auto body shop. Deputy Thompson ordered him outside, and he responded "over my dead body." Richard and his son Chad appeared and Deputy Thompson explained that Cory was under arrest. The Susags stationed themselves in the shop's office.

Deputy sheriffs J. Bau, L. Lagaret, D. Walsh, E. Nichols, D. Martin, D. Ginther, F. Prado, B. Blakely and D. Munoz arrived. For safety reasons, Deputy Thompson asked Richard and Chad to leave the office while Cory was taken into custody. Chad complied, but Richard refused to leave. When it appeared that Cory intended to leave, Deputies Thompson and Walsh grabbed his arm. Richard then began yelling and trying to reach Cory. Deputies Bau and Lagaret handcuffed Richard and they and Deputy Prado removed him from the area. Cory held his arms out straight, but after "about a half minute of pulling on his arms" the deputies handcuffed him and took him into custody.

Cory was charged with the misdemeanor of resisting or obstructing a peace officer. (Pen.Code, § 148, subd. (a).) On January 15, 1999, a jury found him guilty of the offense.

On March 10, 1999, Cory and Richard filed a complaint against the 10 deputies involved in the incident, the City, the County, the Orange County Sheriffs Department and the Orange County Sheriff-Coroner Department, for violation of their federal civil rights (section 1983), assault and battery and use of excessive force, false imprisonment and intentional infliction of emotional distress. Richard's wife Carol joined and sought damages for loss of consortium. The Susags alleged that Cory and Richard "suffered severe physical and emotional injuries as a result of unjustified, retaliatory physical beatings ...." The Susags also alleged that Deputy Thompson had threatened retaliation against them in conjunction with an unrelated investigation he conducted in 1997 into a customer complaint. Deputy Thompson allegedly told Richard and Chad "that if he ever had to come to [their] business premises again, ... he would make sure ... they would `go to jail' and `learn to appreciate his authority' or words to that effect."

The defendants successfully moved for summary judgment against Cory on the ground that his standing conviction under Penal Code section 148, subdivision (a) precludes this action as a matter of law. Additionally, Deputies Thompson, Nichols, Martin, Ginther, Walsh and Blakely obtained summary judgment on Richard's and Carol's claims on the ground they had no physical contact with Richard. The court denied the Susags' motion for a new trial and leave to file a first amended complaint, and this appeal followed.2

I Standard of Review

A "party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he [or she] is entitled to judgment as a matter of law." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850, 107 Cal.Rptr.2d 841, 24 P.3d 493 (Aguilar).) A defendant satisfies this burden by showing "`one or more elements of the `cause of action' in question `cannot be established,' or that `there is a complete defense'" to that cause of action. (Ibid.) "`Once the defendant ... has met that burden, the burden shifts to the plaintiff ... to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.'" (Id, at p. 849, 107 Cal.Rptr .2d 841, 24 P.3d 493.) But "if the showing by the defendant does not support judgment in his favor, the burden does not shift to the plaintiff and the motion must be denied without regard to the plaintiffs showing." (Crouse v. Brobeck, Phleger & Harrison (1998) 67 Cal.App.4th 1509, 1534, 80 Cal.Rptr.2d 94.) In determining whether these burdens have been met, we review the record de novo. (Rubenstein v. Rubenstein (2000) 81 Cal.App.4th 1131, 1143, 97 Cal.Rptr.2d 707.)


Effect of Cory's Conviction


"State courts look to federal law to determine what conduct will support an action under section 1983. [Citation.]"3 (Buenavista v. City and County of San Francisco (1989) 207 Cal.App.3d 1168, 1174, 255 Cal.Rptr. 329.) "[S]tate law that would produce a different outcome [on a section 1983 claim] in state than in federal court must yield to federal law." (County of Los Angeles v. Superior Court (1999) 21 Cal.4th 292, 300, 87 Cal.Rptr.2d 441, 981 P.2d 68.)

In Heck v. Humphrey (1994) 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383, the United States Supreme Court held that "to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a [section] 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus." (Id. at pp. 486-487, 114 S.Ct. 2364, fn. omitted.)

By analogy, the court relied on the common law tort action of malicious prosecution, an element of which is termination of the prior criminal proceeding in favor of the accused. This requirement avoids a collateral attack on the conviction and relitigation of issues of probable cause and guilt, and protects the strong judicial policy against inconsistent resolutions arising from identical facts. The court concluded the "hoary principle that civil tort actions are not appropriate vehicles for challenging the validity of outstanding criminal judgments applies to [section] 1983 damages actions that necessarily require the plaintiff to prove the unlawfulness of his conviction or confinement, just as it has always applied to actions for malicious prosecution." (Heck v. Humphrey, supra, 512 U.S. at p. 486, 114 S.Ct. 2364.)

The court instructed that "when a state prisoner seeks damages in a [section] 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated." (Heck v. Humphrey, supra, 512 U.S. at p. 487, 114 S.Ct. 2364.) To illustrate, the court observed that when the lawfulness of the arrest is an element of a state law crime of resisting arrest, a successful section 1983 action for use of excessive force during the arrest would necessarily imply the invalidity of the plaintiffs conviction. (Heck, at p. 486, fn. 6, 114 S.Ct. 2364.)

In California, the lawfulness of an arrest is an essential element of the offense of resisting or obstructing a peace officer. (People v. Simons (1996) 42 Cal. App.4th 1100, 1109, 50 Cal.Rptr.2d 351.) If the officer was not performing his or her duties at the time of the arrest, the arrest is unlawful and the arrestee cannot be convicted under Penal Code section 148, subdivision (a). (People v. Olguin (1981) 119 Cal.App.3d 39, 45, 173 Cal.Rptr. 663; In re Joseph F. (2000) 85 Cal.App.4th 975, 982, 102 Cal.Rptr.2d 641.) "[Excessive force by a police officer ... is not within the performance of the officer's duty." (People v. Olguin, supra, 119 Cal.App.3d at p. 44, 173 Cal.Rptr. 663; People v. White (1980) 101 Cal.App.3d 161, 167, 161 Cal.Rptr. 541.)

Federal district courts have held that under Heck v. Humphrey, a plaintiff cannot maintain a section 1983 action for excessive force absent proof that his or her conviction under Penal Code section 148, subdivision (a) has been invalidated by appeal or other proceeding. (Franklin v. County of Riverside (C.D.C...

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