BARBARA A. McAULIFFE, Magistrate Judge.
Plaintiff Amy Duran ("Plaintiff" or "Duran") filed a civil rights action against the City of Porterville, the Porterville Police Department, and Porterville Police Officers Michael Gray and Bruce Sokoloff ("Defendants") for an arrest that occurred during the officers' response to a child welfare call. Presently before the Court is Defendants' motion for summary judgment.
The following facts are not materially in dispute.
That evening, Plaintiff was arrested and charged with a violation of California Penal Code § 273a(a) — felony child endangerment.
On March 14, 2013, Plaintiff commenced the instant action alleging four claims for relief: (1) unlawful arrest under § 1983; (2) municipal liability under Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978); (3) violation of California Civil Code § 52.1; and (4) false imprisonment. See Compl., Doc. 1. (Doc. 41). Defendants move for summary judgment on Plaintiff's unlawful arrest and Monell claims. (Doc. 41).
Summary judgment is appropriate when the pleadings, disclosure materials, discovery, and any affidavits provided establish that "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A material fact is one that may affect the outcome of the case under the applicable law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is genuine "if the evidence is such that a reasonable trier of fact could return a verdict in favor of the nonmoving party." Id.
The party seeking summary judgment "always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted). The exact nature of this responsibility, however, varies depending on whether the issue on which summary judgment is sought is one in which the movant or the nonmoving party carries the ultimate burden of proof. See Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). If the movant will have the burden of proof at trial, it must demonstrate, with affirmative evidence, that "no reasonable trier of fact could find other than for the moving party." Id. (citing Celotex, 477 U.S. at 323). In contrast, if the nonmoving party will have the burden of proof at trial, "the movant can prevail merely by pointing out that there is an absence of evidence to support the nonmoving party's case." Id.
If the movant satisfies its initial burden, the nonmoving party must go beyond the allegations in its pleadings to "show a genuine issue of material fact by presenting affirmative evidence from which a jury could find in [its] favor." FTC v. Stefanchik, 559 F.3d 924, 929 (9th Cir. 2009) (emphasis in original). "[B]ald assertions or a mere scintilla of evidence" will not suffice in this regard. Id. at 929; see also Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) ("When the moving party has carried its burden under Rule 56[], its opponent must do more than simply show that there is some metaphysical doubt as to the material facts.") (citation omitted). "Where the record as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no `genuine issue for trial.'" Matsushita, 475 U.S. at 587 (quoting First Nat'l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 289 (1968)).
In resolving a summary judgment motion, "the court does not make credibility determinations or weigh conflicting evidence." Soremekun, 509 F.3d at 984. Instead, "[t]he evidence of the [nonmoving party] is to be believed, and all justifiable inferences are to be drawn in [its] favor." Anderson, 477 U.S. at 255. Inferences, however, are not drawn out of the air; the nonmoving party must produce a factual predicate from which the inference may reasonably be drawn. See Richards v. Nielsen Freight Lines, 602 F.Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898 (9th Cir. 1987).
Plaintiff asserts a Section 1983 claim for unlawful arrest against Officers Sokoloff and Gray.
"The Fourth Amendment protects the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. In conformity with the rule at common law, a warrantless arrest by a law officer is reasonable under the Fourth Amendment where there is probable cause to believe that a criminal offense has been or is being committed." Devenpeck v. Alford, 543 U.S. 146, 153 (2004) (citing United States v. Watson, 423 U.S. 411, 417-424 (1976)) (internal quotations omitted). To prevail on a § 1983 claim for false arrest a plaintiff must demonstrate that there was no probable cause for the arrest. Cabrera v. City of Huntington Park, 159 F.3d 374, 380 (9th Cir. 1998) (per curiam).
"Probable cause exists when, under the totality of the circumstances known to the arresting officers, a prudent person would have concluded that there was a fair probability that [the defendant] had committed a crime." United States v. Buckner, 179 F.3d 834, 837 (9th Cir. 1999) (quoting United States v. Garza, 980 F.2d 546, 550 (9th Cir. 1992)). Probable cause does not require overwhelmingly convincing evidence, but only "reasonably trustworthy information." Saucier v. Katz, 533 U.S. 194, 207 (2001).
"Probable cause is an objective standard and the officer's subjective intention in exercising his discretion to arrest is immaterial in judging whether his actions were reasonable for Fourth Amendment purposes." John v. City of El Monte, 505 F.3d 907, 911 (9th Cir. 2007) (citing United States v. Lopez, 482 F.3d 1067, 1072 (9th Cir. 2007)). "It is essential to avoid hindsight analysis, i.e., to consider additional facts that became known only after the arrest was made." Id. (citing Hansen v. Black, 885 F.2d 642, 645 (9th Cir. 1989)). In order to defeat summary judgement here, the burden is on plaintiff to prove a Fourth Amendment violation by demonstrating a lack of probable cause to arrest her. Cabrera, 159 F.3d at 380.
Plaintiff was arrested on a charge of violating California Penal Code § 273a(a), felony child endangerment. Felony child endangerment occurs when "a person who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits that child to be placed in a situation where his or her person or health is endangered." Cal. Penal Code § 273a(a). Endangerment pursuant to Penal Code section 273a, can occur in a wide variety of situations: the definition "broadly includes both active and passive conduct, i.e., child abuse by direct assault and child endangering by extreme neglect." Gile v. County of San Bernardino, 2005 U.S. Dist. LEXIS 45782, *19-20 (C.D. Cal. June 28, 2005); People v. Sargent, 19 Cal.4th 1206, 1215-16 (1999). "Two threshold elements, however, govern all types of conduct prohibited by this law: first, the conduct must be willful; second, it must be committed `under circumstances or conditions likely to produce great bodily harm or death.'" Id.
Arguing that probable cause existed for Plaintiff's child endangerment arrest, Defendants claim that the Officers were responding to an anonymous call to "check the welfare" of Plaintiff and her minor son. When officers arrived and Plaintiff answered the front door, the officers immediately detected a very strong odor of natural gas within the house. Deposition of Bruce Sokoloff ("Sokoloff Depo.") at 6:11-14, Ex. 1, Doc 41-3. Officers entered Plaintiff's home and noticed that Plaintiff was using her electric oven to warm her kitchen, right next to the unlit stove—creating a potentially explosive enviornment. Officers also allege that while speaking to Plaintiff her speech was slurred and she appeared very confused. A broken wine glass was on the floor and Plaintiff, apparently unaware, repeatedly walked over the broken glass. After speaking with Plaintiff, Officers opened several doors, made sure that the gas stove was off, retrieved Plaintiff's infant son from his bedroom, and took everyone out of the house to await the arrival of the Fire Department which had been called to ventilate the house. Based on these circumstances, the Officers concluded that Plaintiff was unable to care for her own safety and was endangering the life of her son. Deposition of Michael Gray ("Gray Depo.") at 28:13-25, Ex. 5, Doc 41-5. Plaintiff was then placed under arrest for child endangerment. Defendants argue that based on the totality of these circumstances the officers had probable cause to believe that Plaintiff's minor son was in danger.
Plaintiff's version of events wildly differs from that of Defendants. According to Plaintiff, she has a history with Officer Sokoloff, meeting him in December 2011 during an investigation for a burglary at her home. Deposition of Amy Duran ("Duran Depo.") at 57:1-15, Ex. 1, Doc 41-3. After their initial meeting, Officer Sokoloff visited Plaintiff's apartment for coffee on several occasions. Duran Depo. at 63:8-13. On the evening of January 14, 2012, Officer Sokoloff again visited Plaintiff's apartment. Duran Dep. at 65:9-12. Plaintiff heard a knock on the door and opened it to find Officer Sokoloff at her front door. Moments later, Officer Gray also arrived at her front door. Plaintiff claims she told the Officers it was not a good time for a visit because her son was sleeping. Duran Depo. at 70:18-25. Plaintiff alleges that Officers Sokoloff and Gray pushed past her anyway claiming falsely that they smelled natural gas in her home. (Doc. 42 at 2). Plaintiff told the Officers that she was using her electric oven to heat her home, but she denies that the gas stove burner was on at any time during the Officers visit. Duran Depo. at 47:24-48; 73:21-25. Plaintiff claims that although Defendant Officers Sokoloff and Gray falsely claimed that her residence was filled with natural gas— posing an alleged immediate danger of serious bodily injury or death due to harmful vapors or a spontaneous explosion—the Officers made no attempt to remove either Plaintiff or her minor son from the residence for more than 10 minutes while both officers conducted a search of Plaintiff's entire residence. After completing the search, Defendant Officers Sokoloff and Gray requested fire/rescue personnel respond to the scene and when they arrived, equipment used by the fire/rescue personnel failed to detect any natural gas in the residence. (Doc. 42 at 2). Plaintiff was later arrested and transported Sierra View District Hospital where her blood was drawn to determine her blood alcohol level. The tests results established that Plaintiff was not legally intoxicated.
Defendants attempt to defeat Plaintiff's theory that she never admitted that her gas stove was running by pointing to Plaintiff's deposition testimony. During Plaintiff's deposition, Counsel for Defendant asked Plaintiff a series of questions related to Officer Sokoloff's supplemental police report. When asked about statements allegedly made by Plaintiff and recorded in the supplemental police report, Plaintiff testified as follows:
According to Defendants, Plaintiff has not and cannot deny this sworn testimony in which she admitted to telling officers that she left her gas stove on an unlit burner. Duran Depo. at 121.
As discussed above, the parties present starkly different accounts as to what took place on the day of Plaintiff's arrest, in arguing probable cause existed to make the arrest the Officers relied on the following evidence: (1) an anonymous call was made to the Porterville Police Department requesting that officers perform a welfare check at Plaintiff's home; (2) upon arrival, the officers claims they smelled what they believed was natural gas coming from Plaintiff's gas stove; (3) Plaintiff admitted to drinking wine that day, her speech was slurred, and she had little sleep over the previous three days; (4) the officers identified that Plaintiff was using her electric stove to heat her home; (5) based on a fear of excess amounts of natural gas emanating in the home, the fire department was dispatched to perform a proper ventilation; (6) Plaintiff and her minor son were removed from the home while the ventilation occurred.
Plaintiff responds, however, that the issue of probable cause is disputed because the information known to the police officers at the time of her arrest is insufficient as a matter of law to rise to the level of probable cause to arrest. First, Plaintiff contends that she never told Officers that she left her gas stove on. According to Plaintiff, she was preheating her electric oven and left the door ajar to warm her kitchen. Duran Depo. at 73:21-23. Plaintiff denies that her unlit gas stove was running when the Officers arrived. Duran Depo. at 74:16-22. Plaintiff did not smell any gas and when the fire department arrived no natural gas was detected. During her deposition, Plaintiff claims that she never admitted to telling officers that she left the stove running, merely that she agreed with their contention that an unlit gas stove is indeed dangerous. Duran Depo at 122:9-12. Plaintiff asserts that the officers fabricated claims that her home was filled with natural gas as a ruse to enter her home and perform an illegal search. (Doc. 42 at 3). Further, Plaintiff admits that although she had some wine, she was not intoxicated and her lack of sleep over the three previous days is attributable to the realities of raising a newborn as a single mother. Duran Depo. at 113:22-114:23.
Viewing the evidence in the light most favorable to Plaintiff, there is a genuine issue of material fact precluding summary judgment. Specifically, the parties' dispute whether there was the presence of natural gas in Plaintiff's home or whether officers knew that Plaintiff's gas stove was off and are lying about having observed otherwise. This dispute is material to probable cause in this instance because the presence of natural gas in the home is essential to Defendants' theory of arrest— that Plaintiff willfully created "conditions likely to produce great bodily harm or death" of Plaintiff's minor son. Cal. Penal. Code § 273a(a). Setting aside the disputed testimony as to whether the gas stove was on demonstrates that there is no independent basis to determine that Plaintiff's minor child was in imminent danger. Defendants acknowledge this fact in their brief, conceding that:
Ultimately, if there was a presence of natural gas in the home creating a potentially explosive or toxic environment for Plaintiff's minor child, then Defendants had probable cause to arrest Plaintiff; if the officers are lying about having smelled gas in Plaintiff's home, Defendants did not have probable cause for the arrest as there were no other objectively endangering factors present.
Further, contrary to Defendants' arguments, Plaintiff's deposition testimony does not clearly establish that she admitted to leaving her gas stove running. Plaintiff's deposition lends itself to two competing inferences. One inference is that Plaintiff apologetically admitted to officers that it was wrong to leave her gas stove running. In the alternative, an inference can be drawn that Plaintiff simply agreed with officers that a running gas stove would create a dangerous environment. This inference is supported by Plaintiff's contention that there was some confusion regarding which kitchen appliance was running. While Plaintiff readily admits to preheating her electric oven, during her deposition, Plaintiff denies that she left her gas stove running. Duran Depo. at 74:16-19. As addressed above, if the Officers were mistaken as to whether Plaintiff's gas stove was running, then Officers did not have probable cause to arrest Plaintiff.
On a motion for summary judgment, the Court must draw the inference that is most favorable to the non-moving party, here Plaintiff. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Here, the conflicting accounts offered by each party leaves the Court with a classic he-said-she-said scenario. It must be left to a jury to determine which portions of which witnesses' testimony to accept. Id. ("Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge."). As a result, the Court concludes that genuine disputes of fact exist as to whether the Officers had probable cause to arrest Plaintiff. See also Nelson v. City of Davis, 571 F.3d 924, 929 (9th Cir. 2009) ("A judge must not grant summary judgment based on his determination that one set of facts is more believable than another."); Espinosa v. City & County of San Francisco, 598 F.3d 528, 537 (9th Cir. 2010) ("Finally, this court has often held that in police misconduct cases, summary judgment should be granted only `sparingly' because such cases often turn on credibility determinations by a jury.").
Defendants argue in the alternative that they are entitled to qualified immunity because, even if the Officers were mistaken in their belief that the gas leak coupled with Plaintiff's behavior established probable cause, "[a] reasonable peace officer could believe his conduct was lawful" under the facts of this case, and thus their mistake of law was a reasonable one. (Doc. 41 at 13). See Jeffers v. Gomez, 267 F.3d 895 (9th Cir. 2009); Skoog v. County of Clackmas, 469 F.3d 1221, 1229 (9th Cir. 2006). As previously discussed, however, Plaintiff sets forth evidence creating a genuine factual dispute as to what information Officers Sokoloff and Gray had at the time of the arrest, and this factual dispute is also "material to a proper determination of the reasonableness of the officers' belief in the legality of their actions." Espinosa, 598 F.3d at 532. The problem with Defendants' argument that qualified immunity applies is that it assumes Defendants' account of the facts is accurate. Defendants argue they reasonably believed Plaintiff's minor son was in danger because Plaintiff was intoxicated while high levels of natural gas permeated her home. The Court cannot credit that account for qualified immunity purposes because it is inconsistent with the account provided by Plaintiff. Plaintiff's account as depicted through her deposition testimony and opposition, offers a theory of pretext as a means for entering her home for a search.
In determining on a motion for summary judgment whether an officer is entitled to qualified immunity, the Court must resolve all factual disputes in the nonmoving party's favor. See Bardzik v. Cnty. of Orange, 635 F.3d 1138, 1144 (9th Cir. 2011). Believing Plaintiff's evidence that she never left her gas stove on when the officers observed otherwise, and that their reason was mere pretext to perform an illegal search, there is a triable issue as to whether Plaintiff's arrest was effectuated without probable cause. Accordingly, Defendants are not entitled to qualified immunity on the ground that their actions did not amount to a constitutional deprivation.
Defendants' motion for summary judgment on Plaintiff's unlawful arrest claim is therefore DENIED.
Defendants move for summary judgment on Plaintiff's Monell claim against the City of Porterville on the grounds that Plaintiff's claim rests exclusively on the principals of respondeat superior. Plaintiff opposes the motion arguing, in totality, that "there are jury issues that preclude summary judgment as to Officers Gray and Sokolff."
Under Monell, a local governmental entity may be liable for failing to act to preserve constitutional rights under section 1983 where the plaintiff can establish: "(1) that he possessed a constitutional right of which he was deprived; (2) that the municipality had a policy; (3) that this policy `amounts to deliberate indifference' to the Plaintiff's constitutional right; and (4) that the policy is the `moving force behind the constitutional violation.'" Oviatt By & Through Waugh v. Pearce, 954 F.2d 1470, 1474 (9th Cir. 1992) (citing City of Canton v. Geraldine Harris, 489 U.S. 378, 389-91 (1989)). A single occurrence of unconstitutional action by a non-policymaking employee is insufficient to establish the existence of an actionable municipal policy or custom. See Davis v. City of Ellensburg, 869 F.2d 1230, 1233-34 (9th Cir. 1989). "Only if a plaintiff shows that his injury resulted from a `permanent and well settled' practice may liability attach for injury resulting from a local government custom." Thompson v. City of Los Angeles, 885 F.2d 1439, 1444 (9th Cir. 1989).
With respect to Plaintiff's Monell claims, it is Plaintiff's burden to demonstrate an unconstitutional policy, practice or custom promulgated or endorsed by the City of Porterville or the Porterville Police Department. Here, Plaintiff has failed to identify a specific governmental policy or custom on which Monell liability might be premised. Plaintiff fails to put forth any evidence to establish that the City of Porterville had a policy amounting to the deliberate indifference to Plaintiff's constitutional rights, or that the policy was the driving force behind the alleged constitutional violations. There are no genuine issues of material fact regarding Plaintiff's Monell claim. Accordingly, the Court GRANTS Defendants' motion for summary judgment on the Monell claim.
For the reasons set forth above, Defendants' Motion for Summary Judgement (Doc. 41) is
