Zimmerman v. Bishop Estate, s. 92-15794

• Decision Date: 11 August 1993
• Docket Number: 92-16408,Nos. 92-15794,s. 92-15794
• Citation: 25 F.3d 784
• Parties: Robert Lee ZIMMERMAN, Plaintiff-Appellant, v. BISHOP ESTATE, a charitable trust; Bishop Estate Trustees William Richardson, Henry Peters, Oswald Stender, Myron Thompson and Matsuo Takabuki in their official capacities; Bishop Estate Trustees William Richardson, Henry Peters, Myron Thompson and Matsuo Takabuki individually; Elaine Dung and Paul Cathcart, in their capacities as employees of Bishop Estate and individually; Frank F. Fasi, in his capacity as Mayor of the City and County of Honolulu; City and County of Honolulu; Douglas Gibb, in his former capacity as Chief of Police of the Honolulu Police Department and individually; Peter Bertulfo, in his capacities as a Police Officer for the City and County of Honolulu and as a Caretaker for the Bishop Estate and individually; Tim Liu, in his capacity as a legal advisor to the Police Department of the City and County of Honolulu; James R. Aiona, Jr., in his former capacity as Head of the Trials Division of Corporation Counsel for the City and County of Honolulu and individually; Tedson Koja, Keith Kaneshiro and Charles Marsland, in their capacities and former capacity as Prosecutors for the City and County of Honolulu; Captain B. Correa, Lt. L. Wong, Sgts. W. Cambra, K. Luke and T. Hirayama and Officers G. Williams, G. Goeas, G. Nihipali, J. Keanu and G. Witt, in their official capacities as Police Officers and individually, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 784

25 F.3d 784

29 Fed.R.Serv.3d 218

Robert Lee ZIMMERMAN, Plaintiff-Appellant, v. BISHOP ESTATE, a charitable trust; Bishop Estate Trustees William Richardson, Henry Peters, Oswald Stender, Myron Thompson and Matsuo Takabuki in their official capacities Bishop Estate Trustees William Richardson, Henry Peters Myron Thompson and Matsuo Takabuki individually; Elaine Dung and Paul Cathcart, in their capacities as employees of Bishop Estate and individually; Frank F. Fasi, in his capacity as Mayor of the City and County of Honolulu; City and County of Honolulu; Douglas Gibb, in his former capacity as Chief of Police of the Honolulu Police Department and individually; Peter Bertulfo, in his capacities as a Police Officer for the City and County of Honolulu and as a Caretaker for the Bishop Estate and individually; Tim Liu, in his capacity as a legal advisor to the Police Department of the City and County of Honolulu James R. Aiona, Jr., in his former capacity as Head of the Trials Division of Corporation Counsel for the City and County of Honolulu and individually; Tedson Koja, Keith Kaneshiro and Charles Marsland, in their capacities and former capacity as Prosecutors for the City and County of Honolulu; Captain B. Correa, Lt. L. Wong, Sgts. W. Cambra K. Luke and T. Hirayama and Officers G. Williams, G. Goeas, G. Nihipali, J. Keanu and G. Witt, in their official capacities as Police Officers and individually, Defendants-Appellees.

Nos. 92-15794, 92-16408.

United States Court of Appeals, Ninth Circuit.

Submitted Aug. 11, 1993. ^*

Decided May 31, 1994.

Robert Zimmerman, in pro per.

Cheryl Nakamura, Rush Moore Craven Sutton Morry & Beh, Tracy Lowell Wolf, Deputy Corp. Counsel, City and County of Honolulu, Honolulu, Hawaii, for the defendants-appellees.

On Appeal from the United States District Court for the District of Hawaii.

Before: REINHARDT, LEAVY, Circuit Judges, and MERHIGE, Jr., ^** Senior District Judge.

Opinion by Judge LEAVY; Partial Concurrence and Partial Dissent by Judge REINHARDT.

OPINION

LEAVY, Circuit Judge:

FACTS AND PRIOR PROCEEDINGS

This case arose when the appellant, Robert Lee Zimmerman, was arrested for trespass while a house guest of the Kanes, who were squatters in a shack on property owned by the Bishop Estate of Hawaii. In early 1988, the Kanes moved onto the property. In March 1988, Mrs. Kane's father wrote to the Bishop Estate and requested permission for his daughter to be appointed caretaker of the property. Permission was declined in April 1988. In June 1988, the Bishop Estate sent the Kanes a letter warning them that they were trespassing by residing on the property and that they had to vacate. The letter was followed by visits by Elaine Dung Brown, the Bishop Estate land manager, and by Peter Bertulfo, the caretaker appointed by the Estate. Bertulfo, a police officer, entered into a tenancy agreement with the Bishop Estate on October 24, 1988.

On October 26, 1988, Brown and Bertulfo went to the property and warned the Kanes that they had to leave. The family agreed to vacate in five days. On October 31, 1988, Brown and Bertulfo returned with a police officer and after discussion, they agreed to allow the Kanes one more day to vacate the premises. On November 1, 1988, Brown and Bertulfo returned with police officers, who warned the Kanes and their guests, including Zimmerman, that they were trespassing. Everyone left, except Mrs. Kane and Zimmerman, who were arrested. They were taken to the police station, charged with trespass in the second degree and released on bail.

Mrs. Kane then moved back on the property, prompting the Bishop Estate to file an action for ejectment. The Kanes then moved from the premises. The criminal trespass proceedings against Mrs. Kane and Zimmerman were dropped.

In February 1990, Zimmerman filed this pro se action against the Bishop Estate, its trustees, and certain city and county officials. The amended complaint alleged a civil rights violation under 42 U.S.C. Sec. 1983, a conspiracy to violate civil rights, and supplemental state claims. ¹ The district court granted summary judgment to the Bishop Estate and to the city and county defendants. The district court also granted the Bishop Estate's motion for attorney's fees and sanctions pursuant to 42 U.S.C. Sec. 1988 and Fed.R.Civ.Proc. 11.

Zimmerman, appearing pro se, appeals the district court's summary judgments in favor of the Bishop Estate and the Bishop Estate Trustees and employees (the private defendants), and the mayor of Honolulu, the City and County of Honolulu, the former and acting chiefs of police, two prosecutors, and various other municipal and county employees (the city defendants). Zimmerman argues that the district court erred by (1) determining that there was no constitutional violation under 42 U.S.C. Sec. 1983; (2) dismissing Zimmerman's supplemental state tort claims; (3) granting protective orders as to his discovery requests; (4) denying his motions to recuse the district court judge and magistrate judge; and (5) bifurcating his punitive damages claim. Zimmerman also appeals the district court's award of sanctions and attorney's fees to the private defendants.

We affirm the district court on the merits, affirm the award of sanctions regarding Zimmerman's improper motives, and reverse the award of sanctions on the malicious prosecution claim.

DISCUSSION

1. 42 U.S.C. Sec. 1983 Claim

Zimmerman argues that the warrantless arrest violated his Fourth Amendment rights as a guest and that there were no exigent circumstances to justify the search. A party invoking Fourth Amendment protection must have a subjective expectation of privacy that is objectively reasonable. United States v. Taketa, 923 F.2d 665, 670 (9th Cir.1991).

Zimmerman contends that the Kanes had an expectation of privacy because of the length of residency, their improvement of the property and the private defendants' acquiescence in the Kanes' presence. There is no evidence that the Kanes owned, rented, or leased the land or the residence. The private defendants were subsequently given summary possession of the parcel in state court proceedings.

Even if Mrs. Kane had a subjective expectation of privacy, her expectation was not objectively reasonable. In Amezquita v. Hernandez-Colon, 518 F.2d 8, 11-12 (1st Cir.1975), cert. denied, 424 U.S. 916, 96 S.Ct. 1117, 47 L.Ed.2d 321 (1976), the court held that squatters had no reasonable expectation of privacy where they had no legal right to occupy the land and build structures on it. Similarly, the Tenth Circuit has concluded that the Fourth Amendment rights of a trespasser living on federal land were not violated because he had no reasonable expectation of privacy. United States v. Ruckman, 806 F.2d 1471, 1472-74 (10th Cir.1986).

Here, the Kanes requested, and were denied, permission to reside on the property. Three months later they were informed by letter that they were trespassing. In later visits they were told that they were trespassing. There is no dispute of material fact regarding the ownership of the property or whether the private defendants acquiesced in the presence of the Kanes. As a guest on the property, Zimmerman had no greater right to be on the property than did the Kanes. The Kanes' improvement of the property does not give rise to a reasonable expectation of privacy when they had no legal right to occupy the land. See Amezquita, 518 F.2d at 12.

Even if we assume that Zimmerman and the Kanes had an expectation of privacy that was objectively reasonable, Zimmerman's constitutional rights were not violated because the arrest was lawful. There is no Fourth Amendment violation if the officers have obtained the consent of a third party who possesses common authority over the premises. United States v. Matlock, 415 U.S. 164, 171 & n. 7, 94 S.Ct. 988, 993 & n. 7, 39 L.Ed.2d 242 (1974). The police were provided with evidence of the private defendants' ownership of the property at the time of the arrest. Moreover, even if the private defendants did not have actual authority over the premises, the arrest was valid because the police, at the time of the entry, reasonably believed they did have authority over the premises. See Illinois v. Rodriguez, 497 U.S. 177, 188-89, 110 S.Ct. 2793, 2801-02, 111 L.Ed.2d 148 (1990). Because we conclude that there is no evidence of a constitutional violation, we do not decide whether the private defendants acted under color of state law.

We also affirm the district court's grant of summary judgment to the city defendants on the federal claims because there is no evidence that Zimmerman's constitutional rights were violated. See Palmerin v. Riverside, 794 F.2d 1409, 1414-15 (9th Cir.1986) (absent any constitutional violations by individual defendants, there can be no municipal liability).

2. Supplemental State Claims

In his amended complaint, Zimmerman alleges several state tort claims. We review the district court's determination of state law de novo. In re McLinn, 739 F.2d 1395, 1397 (9th Cir.1984) (en banc).

a. Malicious Prosecution

Under Hawaii law, a warrantless arrest is lawful if a police officer has probable cause to believe that an offense is being committed in the officer's presence. House v. Ane, 56 Haw. 383, 538 P.2d 320, 325 (1975). Hawaii agrees with the rule in Amezquita, 518 F.2d at 11-12, that squatters have no reasonable expectation of privacy. State v. Dias, 62 Haw. 52, 609 P.2d 637, 639-40 (1980). A landlord's acquiescence to the trespass for a "considerable period of time," however, can give rise to an expectation of privacy. Id. 609 P.2d at 640. Here, there is no evidence that the private defendants acquiesced in the Kanes' trespass. Because the officers had probable cause to believe that a trespass was being committed in their presence, the warrantless arrest was lawful. See House, 538 P.2d at 325. As to the private defendants, even if we assume that they "initiated" the...