Sanchez v. City of San Diego CA4/1 ( 2023 )

Filed 6/21/23 Sanchez v. City of San Diego CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
COURT OF APPEAL FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
NANCY SANCHEZ, D079922
Plaintiff and Appellant,
v. (Super. Ct. No. 37-2020-
00038691-CU-MC-CTL)
CITY OF SAN DIEGO,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of San Diego County,
Gregory Pollack, Judge. Affirmed.
Pease Law and Bryan W. Pease for Plaintiff and Appellant.
Mara W. Elliott, City Attorney, M. Travis Phelps, Assistant City
Attorney, Catherine A. Richardson, Chief Deputy City Attorney, for
Defendant and Respondent.
In May 2016, Nancy Sanchez attended a protest at the site of a rally for
then-presidential candidate Donald Trump in San Diego. After the San
Diego Police Department (SDPD) declared an unlawful assembly, officers
moved protesters away from the rally site and later arrested Sanchez and
other “anti-Trump” protestors about one mile from the site. Sanchez was
jailed overnight for failure to disperse, but she was not ultimately prosecuted.
Sanchez and other anti-Trump protestors brought suit in federal court
against several SDPD officials and the San Diego County Sheriff’s
Department, the City of San Diego (the City), and the County of San Diego
(the County). The plaintiffs alleged both state and federal causes of action,
including constitutional claims, related municipal liability claims, various
state tort and civil rights claims, and a request for declaratory relief.
In September 2020, the federal district court granted summary
judgment to the County and the City as to all the plaintiffs’ claims except for
their state tort claims (negligence, false imprisonment, and assault and
battery) against the City based on vicarious liability. The district court
dismissed those claims without prejudice to be re-filed in state court. The
Ninth Circuit later affirmed the district court’s decision. (See Ramirez v.
Zimmerman (9th Cir. Nov. 3, 2021, No. 20-56117) 2021 U.S. App. LEXIS
32726 (Ramirez).)
While their federal appeal was pending, the plaintiffs brought suit in
state court against the City, alleging most of the same claims from their
federal suit as well as new class action and California Public Records Act
(Gov. Code, § 6258 (CPRA))1 allegations. The City filed a demurrer to the
plaintiffs’ first amended complaint, and in August 2021, the trial court
1 Further statutory references are to the Government Code unless
otherwise stated.
2
sustained the demurrer without leave to amend based on res judicata,2
statutory immunity, and other grounds.
Sanchez3 contends on appeal that the trial court erred by finding that:
(1) statutory immunities barred some of Sanchez’s claims; (2) Sanchez did not
adequately plead many of her claims; and (3) her notices of claim did not
meet the requirements of the Government Claim Act (§ 900, et seq.).
We conclude that Sanchez forfeited any challenge to the trial court’s res
judicata ruling barring five of her claims by failing to challenge it in the
opening brief, failing to cite any relevant authorities, and failing to provide
any meaningful argument on the issue. We further conclude that the trial
court did not err in granting the City’s demurrer as to Sanchez’s remaining
tort claims because statutory immunity barred her negligence claim, and her
government claim form did not give adequate notice of a cause of action for
assault and battery. Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Because this case arises from a demurrer sustained without leave to
amend, we deem true all well-pleaded factual allegations of the complaint.
(Masters v. San Bernardino County Employees Retirement Assn. (1995) 32
Cal.App.4th 30, 35.)
2 Although the modern term for res judicata is claim preclusion
(Samara v. Matar (2018) 5 Cal.5th 322, 326), we will refer to it as res judicata
to be consistent with the terminology used by the parties and the trial court.
3 Plaintiffs Jairo Cervantes, Brandon Steinberg, and Madison Goodman
filed a notice of appeal with this court along with Sanchez. Because
Cervantes, Steinberg, and Goodman failed to file a brief after notice was
given pursuant to California Rules of Court, rule 8.220(a), we dismissed their
appeals.
3
A. May 2016 Rally
On May 27, 2016, then-presidential candidate Donald Trump held a
rally at the San Diego Convention Center. Both Trump supporters and anti-
Trump protestors gathered outside the venue during and after the rally, and
several hundred police officers were present in the vicinity. The City planned
for the event for weeks and developed an Incident Action Plan, which
involved keeping Trump supporters and anti-Trump protestors separated by
barricades. SDPD also had a contingency plan that involved pushing crowds
east on Harbor Drive towards Chicano Park.
The City implemented an Incident Command System for the event.
According to the complaint, this is a hierarchical structure that allows for a
cooperative response by multiple agencies to organize and coordinate
response activities. SDPD and the San Diego Fire Department were the
unified joint command for the event. They set up a command post in Petco
Park. A lieutenant for SDPD was assigned to convey radio instructions from
incident command to officers in the field.
Between 1:00 p.m. and 3:00 p.m. that afternoon, there were reports of
anti-Trump protestors carrying bats, fights breaking out, and plastic bottles
being thrown at officers in the blocks near the rally venue. After skirmishes
continued and some protestors set small fires, by around 4:40 p.m. the
command post ordered officers to declare the assembly unlawful.4 Officers
repeated unlawful assembly announcements thereafter and the command
4 Penal Code section 726 authorizes law enforcement officials to declare
an unlawful assembly and command those present to disperse. Penal Code
section 409 makes it a misdemeanor for anyone to remain present after such
a warning to disperse. Penal Code section 407 defines an unlawful assembly
as follows: “Whenever two or more persons assemble together to do an
unlawful act, or do a lawful act in a violent, boisterous, or tumultuous
manner, such assembly is an unlawful assembly.”
4
post directed officers to move the remaining crowd southeast from the
Convention Center toward Logan Heights. Officers prevented anti-Trump
protestors from moving north and west, while Trump supporters were
directed to disperse south and onto side streets.
Law enforcement gave conflicting dispersal instructions to both anti-
Trump protestors and Trump supporters at various times. However, by
around 5:20 p.m., protestors had largely cleared the area while a smaller
crowd of anti-Trump protestors remained in the plaza by the trolley tracks
near Fifth Avenue and L Street. Soon after, on instructions from the incident
command, officers began pushing the remaining protestors southeast onto
Harbor Drive for about a mile into the Barrio Logan neighborhood while
Trump supporters stood undisturbed on the west side of Fifth Avenue.
During this push down Harbor Drive, Sanchez and other remaining
protestors were unable to leave.
At approximately 6:30 p.m., incident command ordered officers to begin
making arrests. Another unlawful assembly announcement was made, and
Sanchez was arrested minutes later for failure to disperse. At the time of her
arrest, Sanchez was walking away from officers in the direction anti-Trump
protestors had been ordered to walk.
B. Federal Proceeding
Sanchez and four other anti-Trump protestors who were arrested
(including plaintiffs’ counsel Bryan Pease) filed suit in federal district court
against officials in the SDPD and the City (City Defendants), as well as the
San Diego Sheriff’s Department and the County. They alleged that the
defendants violated their civil rights by preventing their peaceful assembly,
forcing them to walk down Harbor Drive, and making unlawful arrests. The
defendants moved for summary judgment on the following claims: (1) a 42
5
United States Code section 1983 (section 1983) cause of action
under Monell v. Department of Social Services (1978) 436 U.S. 658 (Monell);
(2) violations of the First and Fourth Amendments pursuant to section 1983;
(3) violations of Civil Code sections 51.7 (Ralph Act) and 52.1 (Bane Act);
(4) false imprisonment; (5) assault and battery; (6) negligence; and
(7) declaratory and injunctive relief.
The district court granted summary judgment to the City Defendants
as to the plaintiffs’ First Amendment claims, finding that the plaintiffs had
no constitutional right to peaceably assemble after police began enforcing a
valid unlawful assembly declaration. The court also found that the City
Defendants were entitled to qualified immunity from plaintiffs’ First
Amendment claims. As for the alleged Fourth Amendment violations, the
court determined that the facts failed to demonstrate that any seizure was
unreasonable as a matter of law. The court also found that the City
Defendants were again entitled to qualified immunity on the plaintiffs’
Fourth Amendment claims.
Because the district court determined that the plaintiffs failed to raise
a factual dispute on their constitutional claims, the court granted summary
judgment to the City Defendants on the Monell claim. The court also granted
summary judgment on the plaintiffs’ Ralph Act and Bane Act claims, which
alleged that SDPD officers committed or threatened violence because of the
plaintiffs’ political preferences, and with the intention of interfering with
their constitutional rights. The court found that the facts did not show any
officers committed or threatened violent acts, nor did they show that the
officers interfered with any constitutional or statutory right.
Regarding the plaintiffs’ state tort claims for false imprisonment,
assault and battery, and negligence, the district court determined that
6
though the plaintiffs could not hold the City directly liable for the acts and
omissions of its officers, the City could still be held vicariously liable if
statutory immunity did not apply. The court noted that although the
defendants raised statutory immunities as affirmative defenses in their
answer to the operative complaint, they did not move for summary judgment
on those grounds. For those reasons, the court granted summary judgment to
the City Defendants on the plaintiffs’ state tort claims to the extent they
sought to hold the City directly liable. The court denied summary judgment
on plaintiffs’ tort claims seeking to hold individual officers directly liable and
the City vicariously liable.
Lastly, as to the plaintiffs’ request for declaratory and injunctive relief,
the district court found there was no evidence that the plaintiffs faced an
immediate threat of harm from the City Defendants’ allegedly
unconstitutional conduct in this case. The court further found that the
plaintiffs’ request for a declaration that the City Defendants’ policies and
conduct were unconstitutional was duplicative of their section 1983 claims.
On those bases, the court granted summary judgment to the City Defendants
as to the plaintiffs’ claims for equitable relief.
In sum, the district court granted the City Defendants’ summary
judgment motions as to all claims except for those seeking to hold individual
SDPD officers directly liable, and the City vicariously liable, for false
imprisonment, assault and battery, and negligence. As to these remaining
state-law claims against the City Defendants, the court declined to exercise
its supplemental jurisdiction and dismissed them without prejudice to being
re-filed in state court. The court also granted summary judgment to the
Sheriff’s Department employees and the County on all claims brought against
them.
7
The plaintiffs appealed the decision to the Ninth Circuit, and as
discussed below, they also filed suit in state court. While the state court
proceeding was pending, the Ninth Circuit affirmed the district court’s
decision and concluded, among other things, that the plaintiffs’ Monell claim
failed because “the record contain[ed] no evidence that [the Chief of SDPD]
ratified a subordinate’s unconstitutional action[,]” nor did the plaintiffs argue
that the Chief knew of a constitutional violation. (Ramirez, supra, 2021 U.S.
App. LEXIS 32726 at pp. *1–*2.) The Ninth Circuit also determined that
qualified immunity shielded the individual officers from the plaintiffs’
constitutional claims, and that the plaintiffs forfeited their challenges to the
dismissal of their Ralph Act and state tort claims by failing to brief them on
appeal. (Id. at pp. *2–*4.)
C. State Proceeding
After appealing the district court’s decision, the plaintiffs (except for
Pease) brought suit in state court against only the City, alleging the following
causes of action: (1) writ of mandate; (2) declaratory relief; (3) negligence;
(4) assault and battery; (5) false imprisonment; (6) Ralph Act violations;
(7) Bane Act violations; and (8) violations of the CPRA.
The City filed a demurrer to the plaintiffs’ first amended complaint,
and in August 2021, the trial court sustained the demurrer without leave to
amend. The court found that the plaintiffs’ writ of mandate (count 1),
declaratory relief (count 2), false imprisonment (count 5), Ralph Act (count 6),
and Bane Act (count 7) claims were barred by res judicata. The court further
found that counts 1, 2, and 4 (assault and battery) were barred due to the
plaintiffs’ failure to provide adequate notice in their government claim form.
Regarding count 3 for negligence and counts 5, 6, and 7, the court determined
that statutory immunities set forth in sections 815.2, 820.2, and 845 barred
8
those claims. Lastly, the court sustained the City’s demurrers to the
plaintiffs’ CPRA claims (counts 8 and 9) due to lack of standing.
Sanchez timely appealed. In her reply brief, she has confirmed that
she is not appealing the dismissal of her CPRA claims (counts 8 and 9).
DISCUSSION
I
Sanchez first argues that the trial court erred by finding that statutory
immunities barred her claims for negligence, false imprisonment, Ralph Act
violations, and Bane Act violations. In response, however, the City contends
that the trial court properly found that res judicata barred all of Sanchez’s
claims except for negligence and assault and battery. Without deciding
whether res judicata was a proper basis for sustaining the City’s demurrer,
we conclude that because Sanchez failed to meaningfully address the trial
court’s reliance on res judicata in her opening brief, she has forfeited her
challenge to the court’s rulings on that basis.
“Issues not raised in the appellant’s opening brief are deemed waived or
abandoned.” (Aptos Council v. County of Santa Cruz (2017) 10 Cal.App.5th
266, 296, fn. 7.) It is the appellant’s responsibility to support claims of error
with meaningful argument and citation to authority. When meaningful
argument with citation to authority is not furnished on a particular point, we
may treat it as forfeited. (Blizzard Energy, Inc. v. Schaefers (2021) 71
Cal.App.5th 832, 856; see also Jones v. Superior Court (1994) 26 Cal.App.4th
92, 99 [“Issues do not have a life of their own: if they are not raised or
supported by argument or citation to authority, we consider the issues
waived.”].) Moreover, the appellant must state each point under a separate
heading or subheading in the opening brief, and issues not clearly identified
9
by a heading or subheading are forfeited. (Pizzaro v. Reynoso (2017) 10
Cal.App.5th 172, 179.)
As we have noted, the trial court clearly ruled that res judicata bars the
claims asserted by Sanchez in counts 1, 2, 5, 6, and 7. In her opening brief,
however, Sanchez does not mention or discuss the trial court’s res judicata
ruling. She has provided no argument and cited no case authority in her
opening brief addressing whether and how res judicata applies to each of her
claims, nor has she included any argument heading on the issue. Aside from
making a single passing reference to res judicata (without citing any
authority) when arguing that she adequately pled a Bane Act violation,
Sanchez’s opening brief does not address the trial court’s findings on the
issue, does not identify or discuss the elements of res judicata, and does not
demonstrate how the trial court supposedly erred in applying the doctrine.
Sanchez briefly addresses res judicata in her reply brief when discussing her
writ of mandate and declaratory relief claims, but “[w]e do not consider
points raised for the first time in the reply brief absent a showing of good
cause for the failure to present them before.” (Bruno v. Hopkins (2022) 79
Cal.App.5th 801, 822.)
Accordingly, we conclude that Sanchez has forfeited any challenge to
the trial court’s res judicata ruling as to counts 1, 2, 5, 6, and 7.5 (See
Christoff v. Union Pacific Railroad Co. (2005) 134 Cal.App.4th 118, 125
5 We deny Sanchez’s post-argument request to file a supplemental brief
on privity because we are not deciding the appeal based on the merits of any
issue regarding privity. Sanchez may not challenge the trial court’s res
judicata ruling for the first time at oral argument or in a supplemental brief
after the case was argued and submitted. (See BFGC Architects Planners,
Inc. v. Forcum/Mackey Construction, Inc. (2004) 119 Cal.App.4th 848, 854
[refusing to consider “an issue not mentioned in the briefs and raised for the
first time at oral argument” and denying appellant’s “request to file a
postargument supplemental brief to raise this issue”].)
10
[failure to discuss one of several alternative grounds for summary judgment
in opening brief forfeited issue for appeal and required affirmance of
summary judgment ruling].) Thus, we need not decide any of the alternative
grounds relied on by the trial court for dismissing these five claims. We
therefore turn to the two remaining claims which the trial court did not
dispose of on res judicata grounds: negligence and assault and battery.
II
As to her negligence claim, Sanchez contends the trial court erred by
finding that it was barred by statutory immunities contained in sections
815.2, 820.2, and 845. Because we conclude that discretionary act immunity
under section 820.2 applies to Sanchez’s negligence claim, we need not decide
whether section 845 immunity applies, and we affirm the trial court’s grant
of demurrer.
A. Governing Law
Section 815.2 provides, in relevant part, that a public entity can be held
liable for injury proximately caused by its employee unless the employee is
immune from liability. (§ 815.2, subds. (a) & (b).)
Section 820.2 provides that, “[e]xcept as otherwise provided by statute,
a public employee is not liable for an injury resulting from his act or omission
where the act or omission was the result of the exercise of the discretion
vested in him, whether or not such discretion be abused.” In determining
whether a public employee’s act is “discretionary” under section 820.2, courts
distinguish between the employee’s operational and policy decisions. (See
Caldwell v. Montoya (1995) 10 Cal.4th 972, 981 (Caldwell).) Immunity is
reserved for “ ‘basic policy decisions [which have] . . . been [expressly]
committed to coordinate branches of government,’ and as to which judicial
11
interference would thus be ‘unseemly.’ ” (Ibid., quoting Johnson v.
State (1968) 69 Cal.2d 782, 793 (Johnson).)
On the other hand, “there is no basis for immunizing lower-level, or
‘ministerial,’ decisions that merely implement a basic policy already
formulated. [Citation.] Moreover, . . . immunity applies only to deliberate
and considered policy decisions, in which a ‘[conscious] balancing [of] risks
and advantages . . . took place.” (Caldwell, supra, 10 Cal.4th at p. 981,
quoting Johnson, supra, 69 Cal.2d at pp. 794, fn. 8 & 796.) The burden of
proof to show that discretionary immunity applies is on the public entity
claiming the immunity. (Lopez v. Southern Cal. Rapid Transit Dist. (1985)
40 Cal.3d 780, 794 [“to avail itself of the discretionary immunity provided by
section 820.2, a public entity must prove that the employee, in deciding to
perform (or not to perform) the act which led to plaintiff's injury, consciously
exercised discretion in the sense of assuming certain risks in order to gain
other policy objectives”].)
On appeal from an order sustaining a demurrer, we assume all
properly pled material facts are true, but not contentions, deductions, or
conclusions of fact or law. (Pineda v. Williams-Sonoma Stores, Inc. (2011) 51
Cal.4th 524, 528; Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6.) We
independently review the trial court’s ruling and determine de novo whether
the complaint alleges facts sufficient to state a cause of action. (Mathews v.
Becerra (2019) 8 Cal.5th 756, 768.) When the trial court sustains a demurrer
without leave to amend, “ ‘we review the trial court’s result for error, and not
its legal reasoning.’ ” (Morales v. 22nd Dist. Agricultural Assn. (2018) 25
Cal.App.5th 85, 93, internal quotation marks omitted.)
12
B. Analysis
Sanchez’s complaint alleges that the City is vicariously liable for the
actions of SDPD officers based on the following theories of negligence: (1) the
officers’ breach of “a duty to not declare an ‘unlawful assembly’ when it can
instead protect the First Amendment rights of demonstrators by arresting
violent actors”; and (2) the officers’ breach of “a duty not to enforce an
‘unlawful assembly’ declaration in a discriminatory manner, only against one
side of a dispute.”6 We conclude that because the responsible SDPD
personnel are entitled to discretionary act immunity for their allegedly
negligent acts under section 820.2, the City as their employer cannot be held
vicariously liable for their conduct. (§ 815.2, subd. (b).)
“Discretionary immunity under section 820.2 has been found to apply to
many areas of police work. Courts have found the following to constitute
discretionary decisions for which police officers are immune under section
820.2: (1) the decision to pursue a fleeing vehicle [citations]; (2) the decision
to investigate or not investigate a vehicle accident [citation]; (3) the failure to
make an arrest or to take some protective action less drastic than arrest
[citation]; (4) the decision whether to use official authority to resolve a
dispute [citation]; and (5) the decision whether to remove a stranded vehicle
[citations].” (Conway v. County of Tuolumne (2014) 231 Cal.App.4th 1005,
1015, italics added (Conway).)
“Police officers, however, are not immune under section 820.2 when
their acts are ministerial or public policy dictates against immunity.
Accordingly, courts have determined discretionary immunity does not apply
to the following: (1) an officer’s conduct of an accident investigation after the
6 We express no opinion on whether these theories state a valid claim for
negligence, or whether they merely restate in negligence language the First
Amendment claims plaintiffs asserted in federal court.
13
officer made the discretionary decision to undertake the investigation
[citations]; (2) arresting the wrong person while executing a warrant
[citation]; (3) deciding to arrest an individual when there was no probable
cause to do so [citations] and (4) using unreasonable force when making an
arrest or overcoming resistance to it [citation].” (Conway, supra, 231
Cal.App.4th at p. 1015, italics added.)
In Conway, the court found that discretionary act immunity barred
liability for a SWAT team’s decision to use tear gas to apprehend an armed
suspect who was believed to be holed up inside a house. The court explained:
“As our Supreme Court has noted: ‘The decision, requiring as it does,
comparisons, choices, judgments, and evaluations, comprises the very essence
of the exercise of “discretion” and we conclude that such decisions are
immunized under section 820.2.’ ” (Conway, supra, 231 Cal.App.4th at
p. 1018, italics added.) “The arrest of a suspected armed assailant mandates
decisions affecting public safety; liability for such split-second decisions
conceivably could hamstring officials with unpleasant results.” (Id. at
p. 1020.) “We hold only that, given the importance of the decisions involved
and the potential impact of liability on these decisions, section 820.2 provides
immunity for the officers’ actions here under the authority of Caldwell.”
(Ibid.)
We acknowledge that the line between discretionary policy decisions
and non-immune ministerial or operational decisions is often blurry and
difficult to discern. In this case, however, we conclude that the police actions
challenged by plaintiffs fall on the immunity side of the line. According to
the complaint, the challenged law enforcement decisions to declare an
unlawful assembly, direct remaining anti-Trump protestors down Harbor
Drive, and arrest those who did not disperse, were all made by the incident
14
commanders at Petco Park, who were charged with making tactical decisions
for keeping the peace and preventing violence between two hostile groups—
while balancing their legitimate exercise of First Amendment rights. No less
than the decision to employ tear gas in Conway, these were deliberate and
considered policy decisions by commanders responsible for protecting public
safety. As in Conway, these policy decisions required the exercise of
judgment, conscious balancing of risks and benefits, and choices between
competing strategies for responding to developing events on the ground.
These are the type of discretionary policy decisions that the Legislature has
placed beyond judicial scrutiny, so that they can be made without being
influenced by the threat of personal liability. (Conway, supra, 231
Cal.App.4th at p. 1020.)
Although enforcement of the unlawful assembly order was inherently
an “invasion of the personal liberty of at least some of those present[,]” such
intrusions are “ ‘a regular and necessary part of police work conducted for the
preservation of public safety and order,’ and the decision to use this official
authority on any particular occasion ‘is peculiarly a matter of judgment and
discretion’ for which the officers (and [their employer]) may not be held liable
in tort. [Citations.]” (Watts v. County of Sacramento (1982) 136 Cal.App.3d
232, 235 [holding that officers who ordered plaintiff to leave owner’s property
on threat of arrest were entitled to discretionary act immunity].) Moreover,
“ ‘[a] decision to arrest or to take some protective action less drastic than
arrest, is an exercise of discretion for which a peace officer may not be held
liable in tort.’ ” (Id. at p. 234, quoting McCarthy v. Frost (1973) 33
Cal.App.3d 872, 875.)
While courts have found that immunity does not protect officers from
liability for using excessive force or making false arrests (see, e.g.,
15
Koussaya v. City of Stockton (2020) 54 Cal.App.5th 909, 932; Gillan v. City of
San Marino (2007) 147 Cal.App.4th 1033, 1048, 1051), Sanchez alleged a
separate false imprisonment claim based on her allegedly false arrest, but the
trial court ruled that it was barred by res judicata. (See Asgari v. City of
Los Angeles (1997) 15 Cal.4th 744, 752, fn. 3 [“ ‘[F]alse arrest’ and ‘false
imprisonment’ are not separate torts. False arrest is but one way of
committing a false imprisonment . . . .”], internal quotation marks omitted.)
Because Sanchez has not properly challenged the res judicata ruling on
appeal, she cannot now assert a violation of the same primary right as a basis
for her negligence claim. (See Boeken v. Philip Morris USA, Inc. (2010) 48
Cal.4th 788, 797–798 [res judicata applies to causes of action arising out of
the same primary right, regardless of the legal theory advanced].)
Finally, plaintiffs’ allegations of viewpoint discrimination do not defeat
the immunity. Under section 820.2, when law enforcement commanders are
responding to a volatile situation involving antagonistic groups of protesters
with opposing viewpoints, they must remain free to exercise their
professional judgment to choose the best course of action for keeping the
groups separated, preventing violence and property destruction, and ensuring
public safety. “[G]iven the importance of the decisions involved and the
potential impact of liability on these decisions” (Conway, supra, 231
Cal.App.4th at p. 1020), decision-makers should not have to fear that
exercising their discretion in a manner that may affect the groups differently,
such as by directing one group to a particular location or arresting its
members for criminal acts, will expose them and their employer to liability
for alleged viewpoint discrimination. Thus, plaintiffs’ claim of viewpoint
discrimination does not overcome discretionary act immunity. (See also
Caldwell, supra, 10 Cal.4th at pp. 984–989 [claim of age discrimination in
16
violation of Fair Employment and Housing Act did not defeat discretionary
act immunity].)
Accordingly, we affirm the trial court’s finding that section 820.2
immunity barred Sanchez’s negligence claim. We do not, and need not,
decide whether section 845 immunity also applies.7
III
Lastly, we turn to Sanchez’s remaining claim for assault and battery.
Sanchez argues that the trial court erred by finding that her government
claim form did not adequately reflect a cause of action for assault and
battery. We disagree.
Section 945.4 provides that “no suit for money or damages may be
brought against a public entity on a cause of action for which a claim is
required to be presented in accordance with . . . Section 910 . . . until a
written claim therefore has been presented to the public entity and has been
acted upon by the board, or has been deemed to have been rejected by the
board . . . .” Section 910 requires that the claim state the “date, place and
other circumstances of the occurrence or transaction which gave rise to the
claim asserted” and provide “[a] general description of the . . . injury, damage
or loss incurred so far as it may be known at the time of presentation of the
claim.” (See Stockett v. Association of Cal. Water Agencies Joint Powers Ins.
Authority (2004) 34 Cal.4th 441, 445 (Stockett).)
The purpose of these requirements is “ ‘to provide the public entity
sufficient information to enable it to adequately investigate claims and to
settle them, if appropriate, without the expense of litigation. [Citation.]’ ”
7 Section 845 provides immunity to public entities and public employees
for failure to establish a police department, failure to provide police
protection service, or failure to provide sufficient police protection service.
17
(Stockett, supra, 34 Cal.4th at p. 446.) “[T]he claims statute ‘should not be
applied to snare the unwary where its purpose has been satisfied’ [Citation].”
(Ibid.) The claim notice need not specify each particular act or omission later
proven to have caused the injury, and a complaint’s fuller exposition of the
factual basis is not fatal, so long as the complaint is not based on an “entirely
different set of facts.” (Id. at p. 447.) However, if a plaintiff “relies on more
than one theory of recovery against the [governmental agency], each cause of
action must have been reflected in a timely claim. In addition, the factual
circumstances set forth in the written claim must correspond with the facts
alleged in the complaint.” (Dixon v. City of Livermore (2005) 127 Cal.App.4th
32, 40.) “[E]ven if the claim were timely, the complaint is vulnerable to a
demurrer if it alleges a factual basis for recovery which is not fairly reflected
in the written claim.” (Nelson v. State of California (1982) 139 Cal.App.3d
72, 79.)
Sanchez’s claim, in relevant part, stated as follows:
“PLEASE TAKE NOTICE that claimant Nancy Sanchez
hereby claims damages against Respondents exceeding
$25,000 for [her] false arrest and overnight imprisonment
on May 27, 2016 at approximately 6:30 p.m. by riot police
who declared that no free speech was allowed by anyone
who had been seen near a Donald Trump protest that
evening, and who continued marching all the way into
Barrio Logan and arresting anyone who did not flee quickly
enough.”
We conclude that Sanchez’s claim did not fairly reflect a cause of action
for assault and battery. She alleged in her complaint that “Defendants
touched, or caused Plaintiffs to be touched, with the intent of harming or
offending them, or caused Plaintiffs to reasonably believe that Defendants
would touch them with the intent of harming or offending them.” But her
government claim form made no mention of harmful or offensive contact, the
18
threat of such contact, or any resulting injury. Her claim alleged damages
exceeding $25,000, but there was no description of the nature of those
damages or what caused them, aside from “false arrest and overnight
imprisonment.” (Cf. Connelly v. County of Fresno (2006) 146 Cal.App.4th 29,
39 (Connelly) [finding sufficient notice was given of personal injuries suffered
in an accident where claim specified that damages included “ ‘medical, lost
income, future medical’ ”].) The focus of Sanchez’s claim was false arrest and
infringement on her civil rights, with no mention of excessive force or any
physical harm.
Although arrests typically involve physical contact, to conclude that
every arrest carries with it an inherent factual basis for an assault or battery
cause of action would unduly lower the threshold of what section 910
requires. Courts have recognized that an officer’s “ ‘right to make an arrest
or investigatory stop necessarily carries with it the right to use some degree
of physical coercion or threat thereof to effect it.’ [Citation.]” (Golick v. State
of California (2022) 82 Cal.App.5th 1127, 1138–1139.) Thus, a peace officer
“ ‘may use reasonable force to make an arrest, prevent escape or overcome
resistance, and need not desist in the face of resistance.’ ” (Brown v.
Ransweiler (2009) 171 Cal.App.4th 516, 527, italics added.) Besides alleging
false arrest, Sanchez’s claim did not allege any unreasonable use of force, or
any other facts that would give rise to an assault or battery claim.
“The line between causes of action fairly reflected in, or absent from, a
government claim is – like so many things in the law – highly context
dependent.” (Plata v. City of San Jose (2022) 74 Cal.App.5th 736, 749
(Plata).) In some contexts, such as claims involving car accidents, personal
injury may be an inherent or obvious part of the suit even if it is not explicitly
included in the claim. (See, e.g., Connelly, supra, 146 Cal.App.4th at p. 41
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[“. . . this claim, namely one based on an automobile accident, . . . would be
expected to involve both property damage and personal injuries”].) Here, we
conclude that the claim’s statement that police officers “marched into Barrio
Logan” and arrested Sanchez, without more, does not “fairly describe” an
assault or battery. (See Plata, at p. 748 [concluding plaintiff’s government
claims failed to “fairly describe” a new cause of action included in the
complaint].) Accordingly, we affirm the trial court’s order granting the City’s
demurrer as to Sanchez’s assault and battery claim.
DISPOSITION
The judgment is affirmed. Respondent shall recover its costs on appeal.
BUCHANAN, J.
WE CONCUR:
HUFFMAN, Acting P. J.
KELETY, J.
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