Wood v. City of Sacramento

[7] 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- [11] 12 BRANDY WOOD, No. 2:20-cv-00497 13 Plaintiff, 14 v. MEMORANDUM AND ORDER RE: DEFENDANTS’ MOTION FOR 15 CITY OF SACRAMENTO, a municipal SUMMARY JUDGMENT AND corporation; LEAH ANTONETTI, in PLAINTIFF’S MOTION FOR PARIAL 16 her individual capacity as a law SUMMARY ADJUDICATION enforcement officer for the 17 Sacramento Police Department; and DOES 1-50, inclusive, [18] Defendants. [20] ----oo0oo---- [21] Plaintiff Brandy Wood (“plaintiff”) brought this [22] section 1983 action against the City of Sacramento, Officer Leah [23] Antonetti (“Antonetti”), and DOES 1-50 for various alleged [24] constitutional and state tort offenses. (See Fourth Amended [25] Complaint (“FAC”) (Docket No. 46).) The case arises out of [26] events on March 4, 2019, wherein plaintiff injured her foot at a [27] Black Lives Matter protest. (Id.) [28] 1 The Fourth Amended Complaint asserts four 2 constitutional claims under section 1983 and five state law 3 claims: excessive force (Claim 1), unlawful detention (Claim 2), 4 First Amendment retaliation (Claim 3), municipal liability (Claim 5 4),1 failure to address a serious medical need (Claim 5), Tom 6 Bane Act (Claim 6), battery (Claim 7), negligence (Claim 8), 7 false imprisonment (Claim 9), and false arrest (Claim 10). (See 8 id.) 9 Before the court are the parties’ cross motions for 10 summary judgment or, in the alternative, partial summary 11 judgment.2 Defendants City of Sacramento and Antonetti move for 12 summary judgment on all claims against them except negligence 13 (Claim 8). (Defs.’ Mot. (Docket No. 56).) Plaintiff does not 14 challenge defendants’ motion as to the Fourteenth Amendment claim 15 for failure to address a serious medical need (Claim 5). (See 16 Pl.’s Opp’n at 23, fn. 4.) 17 Plaintiff moves for partial summary judgment on the 18 issues of liability on her claims for excessive force (Claim 1), 19 unlawful detention or arrest (Claim 2), and negligence (Claim 8). 20 (Pl.’s Mot. (Docket No. 57).) 21 I. Factual and Procedural History 22 The following facts are not in dispute. On March 4, 23 2019, plaintiff attended a Black Lives Matter protest in [24] 1 This court previously granted defendants’ motion to [25] dismiss plaintiff’s fourth claim alleging municipal liability. (Docket No. 53.) [26] 27 2 Because plaintiff’s counsel did not appear for oral argument as scheduled, the motions were taken under submission 28 pursuant to Local Rule 230(g). 1 Sacramento.3 (See Baca Decl., Ex. 7 (“Wood Depo.”) at 74:23-75:3 2 (Docket No. 56-3).) There were approximately 150 protestors in 3 attendance. (See Baca Decl., Ex. 8 (“McNally-Anderson Depo.”) at 4 13:13-13:17 (Docket No. 56-3).) The protest began at 6:42 p.m. 5 at or near the parking lot for the Trader Joe’s on Folsom 6 Boulevard and continued up and down the nearby streets. (See id. 7 at 13:10-14:3.) 8 At approximately 7:21 p.m., the protestors stopped at 9 the intersection of 46th Street and J Street. (See Leong Decl. ¶ 10 5 (Docket No. 56-5).) The protestors were given two dispersal 11 orders over loudspeakers. (See id.) The protest continued. 12 (See id.) Dispersal orders were again given at approximately 13 7:32 p.m. at the intersection of 45th Street and J Street, 7:42 14 p.m. at the intersection of 43rd Street and Folsom Boulevard,4 15 8:00 p.m. at the intersection of 43rd and M Street, 8:16 p.m. at 16 the intersection of 40th Street and J Street,5 and 8:58 p.m. at 17 the intersection of 50th Street and Folsom Boulevard. (See id. ¶¶ 18 6-11.) 19 At 9:03 p.m., Deputy Chief Norm Leong declared the 20 protest an unlawful assembly based on vandalism, blocking of the 21 intersections, verbal altercations, and an individual who held a [22] 3 The protest was a reaction to the announcement that 23 there would be no charges brought in the police shooting of Stephon Clark. (FAC ¶ 11.) [24] 4 At this location, 8 dispersal orders were given before [25] the protest continued moving. (See Leong Decl. ¶ 8 (Docket No.56-5).) [26] 27 5 At this location, which is in front of Mercy Hospital, 4 dispersal orders were given but the protest did not move until 28 8:34 p.m. (See id. ¶ 10.) 1 light flare over vehicles.6 (See id. ¶ 17.) The protestors who 2 did not disperse were subject to arrest pursuant to Cal. Penal 3 Code § 409.7 (See id.) From approximately 9:09 p.m. to 9:40 4 p.m., 15 dispersal orders regarding the declaration of an 5 unlawful assembly were given over a loudspeaker so that the 6 orders could be heard over the crowd’s use of whistles and other 7 loud sounds. (See id. ¶¶ 12-13, 17.) After the § 409 dispersal 8 orders began over the loudspeaker, the crowd continued moving 9 down the road. (See McNally-Anderson Depo. at 31:10-31:18.) 10 Police officers on bicycles were then instructed to form a 11 skirmish line on the 51st Street bridge. (See Baca Decl., Ex. 9 12 (“Antonetti Depo.”) at 96:11-97:1 (56-3).) At this point, 13 protestors were no longer free to leave. (See id. 96:9-96:17.) 14 The remaining protestors were all under arrest pursuant to Cal. 15 Penal Code § 409. 16 Plaintiff marched in the protest for two to three hours 17 before she heard the dispersal orders. (See Wood Depo. at 78:1618 78:25.) She recalls first hearing the dispersal orders while in 19 the Trader Joe’s parking lot. (See id. at 76:7-76:11.) She also [20] 6 Specifically, the four incidents of possible criminal [21] activity were: (1) a “verbal confrontation” with a “resident 22 outside his house”; (2) a confrontation with a person wearing a “Make America Great Again” hat which resulted in the person’s hat 23 either being flipped of his head or falling off; (3) a person holding a flame, that was later determined to be a flare, over 24 vehicles; and (4) reports of damage to vehicles. (See Pl.’s Mot., Ex. 3 (“Leong Depo.”) at 21-24 (Docket No. 57-3).) [7] Cal. Penal Code § 409 provides: “Every person remaining present at the place of any riot, rout, or unlawful assembly, 27 after the same has been lawfully warned to disperse, except public officers and persons assisting them in attempting to 28 disperse the same, is guilty of a misdemeanor.” 1 remembers individual officers telling the protestors to 2 “disperse.”8 (See id.) Officers were still allowing people to 3 leave as these dispersal orders were being given. (See Antonetti 4 Depo. 91:7-91:25; Baca Decl., Ex. 1 (“Officer Giusti Video”) at 5 5:16:10-5:16:27 (Docket No. 56-3).) 6 At approximately 9:15 p.m., immediately following a 7 dispersal order, plaintiff approached an officer to ask which 8 route to take to leave the protest. (See id.) She was told she 9 could leave by taking an alley adjacent to the Trader Joe’s. 10 (See id.) However, plaintiff did not leave the protest.9 (See 11 id.) 12 At approximately 9:52 p.m., plaintiff approached 13 Antonetti, who was standing on the skirmish line. (See Baca 14 Decl., Ex. 2 (“Officer Antonetti Video”) at 5:52:39 (Docket No. 15 56-3).) Plaintiff began to curse and insult Antonetti. (See 16 id.) A member of the clergy, Minister Pamela McNally-Anderson 17 (“McNally-Anderson”), who attended the protest as a part of a 18 clergy group called “Sacramento Act Area Congregations Together,” 19 witnessed the exchange between plaintiff and Antonetti. (See 20 McNally-Anderson Depo. at 38:4-39:9, 40:24-41:3; Baca Decl., Ex. 21 3 (“Officer Haden Video”) at 5:53:00 (Docket No. 56-3).) [22] 23 8 The dispersal orders were given approximately ten times in the Trader Joe’s parking lot through a loudspeaker. (See Baca 24 Decl., Ex. 9 (“Antonetti Depo.”) at 77:16-77:20 (Docket No. 563).) [26] 9 According to Officer Giusti’s body cam video’s time stamp, this conversation with plaintiff occurred approximately 27 thirty-seven minutes before plaintiff alleges her foot was injured. (See Baca Decl., Ex. 1 (“Officer Giusti Video”) at 28 5:16:10-5:16:27 (Docket No. 56-3).) 1 McNally-Anderson walked over to the two women to try to 2 deescalate the situation.10 (See id.) McNally-Anderson stood 3 right in front of Antonetti, thus placing her body directly in 4 between plaintiff and Antonetti. (See id.) 5 At approximately 9:53 p.m., while McNally-Anderson was 6 still standing in between plaintiff and Antonetti, the crowd of 7 protestors suddenly pushed forward towards the skirmish line 8 because a police officer had approached the other side of the 9 crowd with a pepper ball launcher. (Baca Decl., Ex. 5 (“Officer 10 Cook Video”) at 5:53:20 (Docket No. 56-3).) The push of the 11 crowd caused McNally-Anderson to be compressed between plaintiff 12 and Antonetti. (See McNally-Anderson Depo. at 49:4-49:15; 13 Officer Antonetti Video at 5:53:21; Antonetti Depo. at 119:1414 119:16.) The time of the crowd’s push, 9:53 p.m., is the precise 15 time that plaintiff believes her foot was injured. (See Wood 16 Depo. at 126:8-126:14.) Wood testified that her left foot was 17 injured when her foot became stuck in the spoke of a bike wheel 18 being held by an officer. (See id. at 97:2-97:19 .) 19 Plaintiff was ultimately arrested by Officer Chad Lewis 20 for violation of Cal. Penal Code § 409 -- a misdemeanor crime for 21 failure to disperse. (See Lewis Decl. ¶ 12 (Docket No. 56-4).) 22 Plaintiff told Lewis that she was injured and needed medical 23 attention. (See Wood Depo. at 136:11-136:20; Baca Decl., Ex. 6 24 (“Officer Lewis Video”) at 6:20:21-6:21:03 (Docket No. 56-3).) [25] 10 The footage from Officer Haden’s body cam shows McNally-Anderson rubbing plaintiff’s arm as she stands in between [26] plaintiff and Antonetti. (See Baca Decl., Ex. 3 (“Officer Haden 27 Video”) at 5:53:00 (Docket No. 56-3).) The footage also shows McNally-Anderson telling the officers on the skirmish line that 28 she is there to help them. (See id.) 1 However, plaintiff declined all medical care offered, including 2 that offered by Officer Lewis and the paramedics. (See Wood Depo 3 at 139:9-140:22, 143:1-143:8; Lewis Video at 6:26:57-6:29:56.) 4 II. Legal Standard 5 “Summary judgment is appropriate when, viewing the 6 evidence in the light most favorable to the non-moving party, 7 there is no genuine dispute as to any material fact.” Acosta v. 8 City Nat’l Corp., 922 F.3d 880, 885 (9th Cir. 2019). A material 9 fact is one that could affect the outcome of the suit, and a 10 genuine issue is one that could permit a reasonable trier of fact 11 to enter a verdict in the non-moving party’s favor. Anderson v. 12 Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 13 The party moving bears the initial burden of 14 establishing the absence of a genuine issue of material fact and 15 can satisfy this burden by presenting evidence that negates an 16 essential element of the non-moving party’s case. See Celotex 17 Corp. v. Catrett, 477 U.S. 317 , 322–23 (1986). Alternatively, 18 the movant can demonstrate that the non-moving party cannot 19 provide evidence to support an essential element upon which it 20 will bear the burden of proof at trial. Id. The burden then 21 shifts to the non-moving party to set forth specific facts to 22 show that there is a genuine issue for trial. See id. at 324 . 23 Any inferences drawn from the underlying facts must, however, be 24 viewed in the light most favorable to the non-moving party. See 25 Matsushita Elec. Indus. Co. v. Zenith Radio 26 III. Discussion 27 A. Fourth Amendment Excessive Force (Claim 1) 28 Plaintiff first contends that defendant Antonetti 1 violated her Fourth Amendment right to be free from excessive 2 force by striking plaintiff with her bike and fracturing her 3 ankle while plaintiff was attempting to disperse. (FAC ¶¶ 22-23; 4 Pl.’s Opp’n at 12-14.) 5 Under the Fourth Amendment, police may use only such 6 force during an arrest as is objectively reasonable under the 7 circumstances, as judged by a reasonable officer at the scene. 8 See Graham v. Connor, 490 U.S. 386, 396-97 (1989). Excessive 9 force claims require “balance[ing] the amount of force applied 10 against the need for that force.” Bryan v. MacPherson, 630 F.3d 11 805, 823-24 (9th Cir. 2010) (citation and quotations omitted). 12 “Determining whether the force used to effect a 13 particular seizure is ‘reasonable’ under the Fourth Amendment 14 requires a careful balancing of the nature and quality of the 15 intrusion on the individual’s Fourth Amendments interests against 16 the countervailing governmental interests at stake.” Graham, 490 17 U.S. at 396 (citations and internal quotations omitted). “The 18 ‘reasonableness’ of a particular use of force must be judged from 19 the perspective of a reasonable officer on the scene, rather than 20 with the 20/20 vision of hindsight.” Id. at 396 (citing Terry v. 21 Ohio, 392 U.S. 1, 20-22 (1968)). 22 Moreover, “[t]he calculus of reasonableness must embody 23 allowance for the fact that police officers are often forced to 24 make split-second judgments -- in circumstances that are tense, 25 uncertain, and rapidly evolving -- about the amount of force that 26 is necessary in a particular situation.” Id. at 396-97. Thus, 27 “the appropriate inquiry is whether the officer[] acted 28 reasonably, not whether [she] had less intrusive alternatives 1 available to them.” Scott v. Henrich, 39 F.3d 912, 915 (9th Cir. 2 1994). 3 Plaintiff argues that Officer Antonetti “used excessive 4 force with her bike when she struck [p]laintiff and/or kept the 5 crowd from dispersing.” (Pl.’s Opp’n at 12). However, the 6 evidence does not raise a genuine issue in support of that 7 argument. See Celotex Corp., 477 U.S. at 324 . Specifically, 8 plaintiff has not provided any evidence which suggests that 9 Officer Antonetti ever struck plaintiff with her bike or that 10 that Officer Antonetti’s use of her bike on the skirmish line to 11 keep a crowd from dispersing amounted to excessive force. 12 To the contrary, the body camera videos of Antonetti, 13 Officer Bryon Stone, and Officer Timothy Haden show McNally14 Anderson standing in between plaintiff and Antonetti at the time 15 the crowd pushes. (See Officer Antonetti Video at 5:53:20; 16 Officer Stone Video at 5:53:20; Officer Haden Video at 5:53:20.) 17 The body cam videos also show that Antonetti did not use her bike 18 to strike plaintiff at any time, including the time at which 19 plaintiff testified she injured her foot. (See id.) 20 “When opposing parties tell two different stories, one 21 of which is blatantly contradicted by the record, so that no 22 reasonable jury could believe it, a court should not adopt that 23 version of the facts for purposes of ruling on a motion for 24 summary judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007). 25 Plaintiff has not provided any evidence which calls into question 26 the version of the facts shown in the three body camera videos. 27 The record shows that McNally-Anderson stood in between plaintiff 28 and Antonetti and was compressed between the two women at the 1 time plaintiff testified she injured her foot. (See Officer 2 Antonetti Video at 5:53:20; Officer Stone Video at 5:53:20; 3 Officer Haden Video at 5:53:20.) Accordingly, because plaintiff 4 has not raised a genuine dispute of material fact as to her 5 excessive force claim against Antonetti, the court will deny 6 plaintiff’s motion for partial summary judgment on the issue of 7 liability and grant defendant’s motion for summary judgment on 8 plaintiff’s excessive force claim. 9 B. Fourth Amendment Unlawful Detention or Arrest (Claim 2) 10 Plaintiff next contends that defendant Antonetti 11 violated her Fourth Amendment right to be free from unlawful 12 detention or arrest by refusing to allow plaintiff to disperse. 13 (FAC ¶ 25-26; Pl.’s Opp’n at 3.) In their motion, defendants 14 argue that plaintiff’s seizure was not unlawful. (Defs.’ Mot. at 15 30-35.) 16 “A person is seized by the police and thus entitled to 17 challenge the government’s action under the Fourth Amendment when 18 the officer by means of physical force or show of authority 19 terminates or restrains his freedom of movement through means 20 intentionally applied.” Nelson v. City of Davis, 685 F.3d 867 , 21 975 (quoting Brendlin v. Cal., 551 U.S. 249, 254 (2007)). “A 22 seizure results in a constitutional violation only if it is 23 unreasonable.” Nelson, 685 F.3d at 878 (citing Graham, 490 U.S. 24 at 396). “The determination of unreasonableness requires us to 25 decide ‘whether the totality of circumstances justified a 26 particular sort of seizure.’” Id. at 878 (quoting Tennessee v. 27 Garner, 471 U.S. 1, 8-9 (1985)). The court must balance “the 28 nature and quality of the intrusion on the individual’s Fourth 1 Amendment interests against the countervailing governmental 2 interests at stake.” Graham, 490 U.S. at 396 (citations 3 omitted). [4] Cal. Penal Code § 409 provides: “Every person remaining 5 present at the place of any riot, rout, or unlawful assembly, 6 after the same has been lawfully warned to disperse, except 7 public officers and persons assisting them in attempting to 8 disperse the same, is guilty of a misdemeanor.” An unlawful 9 assembly occurs “[w]henever two or more persons assemble together 10 to do an unlawful act, or do a lawful act in a violent, 11 boisterous, or tumultuous manner.” Cal. Penal Code § 407 . 12 “The plain objective of section 409 is to enable law 13 enforcement officers to de-fuse riotous situations by ordering 14 persons to remove themselves from the area without any need to 15 distinguish between the rioters and bystanders whose very 16 presence aggravates the problem of restoring tranquility.” 17 Dubner v. City & Cnty of S.F., 266 F.3d 959 , 967 (9th Cir. 2001) 18 (quoting People v. Cipriani, 18 Cal. App. 3d 299, 309 (2nd Dist. 19 1971)). “California courts have since interpreted [§ 409] to 20 require a clear and present danger of imminent violence before 21 bystanders can be arrested along with participants in an unlawful 22 assembly.” Id. (emphasis added) (citing In re Brown, 9 Cal. 3d 23 612, 623 (1973)).11 [24] 11 In In re Brown, the police declared a protest at a [25] college campus an unlawful assembly and ordered the crowd to disperse. See 9 Cal. 3d 612, 616 (1973). Within minutes, the [26] police encircled the crowd and placed everyone under arrest. Id. 27 The petitioners were acquitted of charges for violating § 409. Id. at 615. The California Supreme Court held that, as to Cal. 28 Penal Code §§ 407 (Unlawful Assembly) and 408 (Rout and Unlawful 1 Plaintiff argues that Cal. Penal Code § 409 cannot 2 provide probable cause for her arrest because the officers did 3 not distinguish between participants and bystanders when issuing 4 arrests.12 (Pl.’s Opp’n at 9-11.) Plaintiff relies on Dubner, [5] 266 F.3d 959 . There, the plaintiff attended a protest as a 6 “legal observer,” rather than a participant. See id. at 962. 7 She was arrested after dispersal orders were given. Id. at 963. 8 The Ninth Circuit held that “police are at least required to 9 differentiate between the participants and innocent bystanders” 10 where a protest is neither violent nor poses a risk of imminent 11 violence. Id. at 968. Because the protest did not involve “a 12 sufficient risk of violence,” plaintiff contends that the arrest 13 of nonparticipants, including the plaintiff, under § 409 was 14 unjustified. Id. 15 Here, unlike Dubner, plaintiff was not an innocent 16 bystander. Rather, it is undisputed that plaintiff marched in 17 the protest for two to three hours before she heard the dispersal 18 orders. (See Wood Depo. at 77:2-78:21.) From 9:09 p.m. to 9:40 19 p.m., the police issued multiple dispersal orders explaining that 20 the protest had been deemed an unlawful assembly and those who [21] Assembly), what is an unlawful assembly “must be limited to 22 assemblies which are violent or which pose a clear and present danger of imminent violence.” Id. at 623. [23] 12 “Probable cause for a warrantless arrest arises when 24 the facts and circumstances within the officer’s knowledge are sufficient to warrant a prudent person to believe that the [25] suspect has committed . . . an offense.” Crowe v. Cnty of San Diego, 608 F.3d 406, 432 (9th Cir. 2010) (quoting Barry v. [26] Fowler, 902 F.2d 770, 773 (9th Cir. 1990)). “[P]robable cause 27 must be particularized with respect to the person to be searched or seized.” Id. at 439 (citation omitted). [28] 1 did not disperse were subject to arrest pursuant to § 409. (See 2 Leong Decl. ¶ 17.) Plaintiff testified that she heard at least 3 some of those dispersal orders. (See Wood Depo. at 76:7-76:11.) 4 At approximately 9:15 p.m., plaintiff was specifically told how 5 she could leave the protest, but declined to avail herself of 6 that opportunity and continued to actively participate in the 7 demonstration for another 37 minutes. (See Officer Giusti Video 8 at 5:16:13-5:16:27.) 9 Accordingly, because plaintiff has not raised a genuine 10 dispute that there was probable cause for her arrest under Cal. 11 Penal Code § 409, defendants’ motion for summary judgment on 12 plaintiff’s Fourth Amendment claim for unlawful detention will be 13 granted and plaintiff’s motion for partial summary judgment on 14 the issue of liability on that claim will be denied. 15 C. First Amendment Retaliation (Claim 3) 16 Plaintiff contends that defendant Antonetti violated 17 her First Amendment rights by striking plaintiff with her bike 18 and arresting plaintiff in retaliation for “cussing” and using 19 “abusive and crude language.” (Pl.’s Opp’n at 3.) In their 20 motion, defendants argue that Antonetti did not retaliate against 21 plaintiff for her exercise of her First Amendment rights because 22 there was neither excessive force nor an unlawful seizure. (See 23 Def.’s Mot. at 38-30.) 24 “The First Amendment prohibits government officials 25 from subjecting an individual to retaliatory actions for engaging 26 in protected speech.” Nieves v. Bartlett, 139 S. Ct. 1715 , 1722 27 (2019) (quoting Hartman v. Moore, 547 U.S. 250, 256 (2006)) 28 (quotations omitted). To recover under § 1983 for First 1 Amendment retaliation, a plaintiff must prove: “(1) he engaged in 2 constitutionally protected activity;13 (2) as a result, he was 3 subjected to adverse action by the defendant that would chill a 4 person of ordinary firmness from continuing to engage in the 5 protected activity; and (3) there was a substantial causal 6 relationship between the constitutionally protected activity and 7 the adverse action.” Ballentine v. Tucker, 28 F.4th 54 , 61 (9th 8 Cir. 2022) (quoting Blair v. Bethel Sch. Dist., 608 F.3d 540 , 543 9 (9th Cir. 2010)). Actions that are considered adverse include 10 arrests, prosecutions, and dismissals from government. See 11 Houston Comm. College Sys. v. Wilson, 142 S. Ct. 1253 , 1260 12 (2022) (citations omitted). 13 Action taken lawfully by the police cannot be an 14 adverse action in a retaliation claim. See Nieves, 139 S. Ct. at 15 1722 (citation omitted) (retaliation “must be a ‘but-for’ cause, 16 meaning that the adverse action again the plaintiff would not 17 have been taken absent the retaliatory motive”). As already 18 discussed, the court granted summary judgment for defendants on 19 both the excessive force and unlawful detention claims because 20 plaintiff did not raise a genuine dispute of material fact. 21 Plaintiff has advanced no other arguments or provided 22 any facts which suggest that she was subjected to any unlawful 23 adverse action in retaliation for her speech. Her First [24] 13 Disrespectful language directed at the police is 25 protected speech. See e.g., City of Houston v. Hill, 482 U.S. 451, 461 (1987) (“The First Amendment protects a significant 26 amount of verbal criticism and challenge directed at police . . . . ‘unless shown likely to produce a clear and present danger of a 27 serious substantive evil that rises far above public inconvenience, annoyance, or unrest.’”) (quoting Terminiello v. 28 Chicago, 337 U.S. 1, 4 (1949)). 1 Amendment retaliation claim must therefore fail. See Ballentine, 2 28 F.4th at 61. Accordingly, defendants will be granted summary 3 judgment on plaintiff’s First Amendment retaliation claim. 4 D. Tom Bane Act (Claim 6) 5 The Tom Bane Act gives rise to a claim when “a person . 6 . . whether or not acting under the color of law, interferes by 7 threat, intimidation, or coercion, or attempts to interfere by 8 threat, intimidation, or coercion” with a right secured by 9 federal or state law. Cal. Civ. Code § 52.1 (a). “[A]ny 10 individual whose exercise or enjoyment of rights secured by the 11 Constitution or laws of the United States . . . has been 12 interfered with, or attempted to be interfered with, as described 13 in [the Tom Bane Act] . . . may institute . . . a civil action 14 for damages . . . .” Id. § 52.1(b). As discussed above, the 15 court finds that plaintiff’s First and Fourth Amendment rights 16 were not violated. Because plaintiff’s constitutional rights 17 have not been violated, she cannot maintain a Tom Bane Act 18 claim.14 Accordingly, defendants will be granted summary judgment 19 as to plaintiff’s Tom Bane Act claim. 20 E. Battery (Claim 7) 21 “The elements of civil battery are: (1) defendant 22 intentionally performed an act that resulted in a harmful or 23 offensive contact with the plaintiff’s person; (2) plaintiff did 24 not consent to the contact; and (3) the harmful or offensive 25 contact caused injury, damage, loss, or harm to plaintiff.” [26] 27 14 Plaintiff does not assert any claims that there was any violation of her rights besides those provided for by the U.S. 28 Constitution. 1 Brown v. Ransweiler, 171 Cal. App. 4th 516, 526-27 (4th Dist. 2 2009) (citation omitted). 3 Police officers, however, are “not similarly situated 4 to the ordinary battery defendant and need not be treated the 5 same.” Id. at 527 (citation and quotation omitted). To assert a 6 claim for battery against a police officer, “a plaintiff must 7 prove that the peace officer’s use of force was unreasonable.” [8] Id. Because the court has determined that defendants’ use of 9 force was reasonable, plaintiff cannot maintain a battery claim. 10 Accordingly, defendants will be granted summary judgment on 11 plaintiff’s battery claim. 12 F. Negligence (Claim 8) 13 Plaintiff seeks partial summary judgment on the issue 14 of liability on her negligence claim based upon Antonetti’s 15 alleged use of excessive force.15 (Pl.’s Mot. at 13.) While 16 defendants do not move for summary judgment on plaintiff’s 17 negligence claim, they oppose plaintiff’s motion for partial 18 summary judgment. (See Defs.’ Opp’n at 36.) As discussed above, 19 the court found no triable issue of fact as to whether Antonetti 20 used excessive force. See Susag v. City of Lake Forest, 94 Cal. 21 App. 4th 1401, 1412 (4th Dist. 2002) (“[I]t appears unsound to 22 distinguish between section 1983 and state law claims arising 23 from the same alleged misconduct.). Accordingly, the court will 24 deny plaintiff’s motion for partial summary judgment on the issue [25] 15 “[I]n order to prove facts sufficient to support a 26 finding of negligence, a plaintiff must show that [the] defendant had a duty to use care, that he breached that duty, and that the 27 breach was the proximate or legal cause of the resulting injury.” Hayes v. Cnty of San Diego, 57 Cal. 4th 622, 629 (2013). [28] 1 of liability on her negligence claim. 2 G. False Imprisonment and False Arrest (Claims 9 and 10) 3 “False arrest and false imprisonment are the same tort. 4 False arrest is a way of committing false imprisonment.” Cox v. 5 Griffin, 34 Cal. App. 5th 400, 446, fn. 6 (4th Dist. 2019) 6 (citation omitted); see also Martinez v. City of L.A., 141 F.3d 7 1373, 1379 (9th Cir. 1998). The court will therefore address 8 these claims together. 9 “The elements of a tortious claim of false imprisonment 10 are: (1) the nonconsensual, intentional confinement of a person, 11 (2) without lawful privilege, and (3) for an appreciable period 12 of time, however brief.” Easton v. Sutter Coast Hosp., 80 Cal. 13 App. 4th 485, 496 (1st Dist. 2000). “Pursuant to Cal. Penal Code 14 § 847(b)(1), a police officer shall not be held civilly liable 15 for false arrest . . . if the police officer had reasonable cause 16 to believe the arrest was lawful . . . .” Newman v. San Joaquin 17 Delta Cmty. Coll. Dist., 814 F. Supp. 2d 967, 979 (E.D. Cal. 18 2011) (Shubb, J.) (citation and quotations omitted). For the 19 reasons discussed with respect to plaintiff’s Fourth Amendment 20 unlawful detention claim, plaintiffs have not raised a genuine 21 issue of material fact as to whether the confinement was without 22 lawful privilege. Accordingly, the court will grant defendants’ 23 motion with respect to the false imprisonment and false arrest 24 claims. 25 IT IS THEREFORE ORDERED that defendants’ motion for 26 summary judgment on plaintiff’s claims for excessive force (Claim 27 1), unlawful detention (Claim 2), First Amendment retaliation 28 (Claim 3), failure to address a serious medical need (Claim 5), EIEIO EIEN IE IID I OE OE IIE IIE IIIS IE OSI IEE III EES eee 1 Tom Bane Act (Claim 6), battery (Claim 7), false imprisonment 2 (Claim 9), and false arrest (Claim 10) (Docket No. 56) be, and 3 the same hereby is, GRANTED. IT IS FURTHER ORDERED that 4 1} plaintiff’s motion for partial summary judgment (Docket No. 57 5 | be, and the same hereby is, DENIED. The sole remaining claim is 6 | plaintiff’s claim for negligence against defendant Antonetti. 7 (Claim 8). delle Ah (hi. 8 Dated: January 25, 2023 □□□□□□□□□□□□□□□□□□□□□□□□□□ 9 UNITED STATES DISTRICT JUDGE