Filed 6/4/14 Roybal v. City of Santa Ana CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


JEREMY ROYBAL,

     Plaintiff and Appellant,                                          G048496

         v.                                                            (Super. Ct. No. 30-2012-00556466)

CITY OF SANTA ANA et al.,                                              OPINION

     Defendants and Respondents.



                   Appeal from a judgment of the Superior Court of Orange County, Robert J.
Moss, Judge. Affirmed in part; reversed in part and remanded with directions.
                   Michael A. Lotta for Plaintiff and Appellant.
                   Sonia R. Carvalho, City Attorney, and Joseph Straka, Assistant City
Attorney for Defendants and Respondents.
              Jeremy Roybal appeals from the judgment in favor of the City of Santa Ana
and one of its police officers, Ramiro Vergara, after their motion for summary judgment
was granted. Following his arrest for possession of marijuana for sale, Roybal filed the
instant action alleging numerous tort and civil rights causes of action arising out of his
detention and arrest. Vergara was not the officer who detained or arrested Roybal, and
had no interaction with him during the incident, but had alerted other officers to the
suspicious activities that focused other officers on Roybal. On appeal, Roybal argues
there were material issues of fact as to whether Vergara could be liable for violation of
his civil rights on the theory he was the one who “start[ed] the rock rolling down the
hill.” We find merit to Roybal’s contentions as to Vergara. Accordingly, the summary
judgment as to Vergara only is reversed, and in all other respects, the judgment is
affirmed.
                               FACTS AND PROCEDURE
The Complaint
              The City and Vergara are the only named defendants in Roybal’s
complaint. The gist of the allegations are that on February 27, 2011, Vergara and other
police officers (who were unserved Doe defendants) detained Roybal without reasonable
suspicion and arrested him without probable cause, battering him in the process. Roybal
alleged Vergara and the other officers illegally searched his car and fabricated that
Roybal had consented to the search. The officers found marijuana in the trunk of
Roybal’s car but denied Roybal access to his medical marijuana card, which would have
demonstrated the marijuana was for legal purposes. Roybal alleged the officers’ conduct
resulted in false criminal charges being brought against him. Roybal alleged the City
knew Vergara had a propensity for racial profiling of young Hispanic males and a history
of unreasonably detaining and arresting them. He alleged the City failed to adequately
supervise, train, and control its police officers, including Vergara.


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              Roybal’s complaint contained four causes of action alleged against the
individual defendants only (i.e., Vergara, and police officers and supervisors who were
unserved Doe defendants). Those causes of action included: assault and battery (first
cause of action) based on allegations the individual defendants “offensively touch[ed]
and [struck] persons based upon racism and profiling[;]” negligence (second cause of
action) based on allegations Vergara and other officers negligently and carelessly
engaged in racial profiling and fabricated facts to cause criminal charges to be brought
against Roybal; and intentional infliction of emotional distress (third cause of action) and
negligent failure to warn (fourth cause of action) based on allegations the individual
defendants knew of their propensity to engage in racial profiling and conduct unlawful
detentions and arrests but failed to warn Roybal of the risk they posed or to take
reasonable steps to prevent harm to him.
              Roybal’s complaint also contained two causes of action alleged against all
defendants including the City. The complaint’s fifth cause of action was for failure to
train and supervise. It alleged the City had a duty to adopt and enforce policies against
racial profiling and unlawful detentions and arrests and to adequately train its police
officers and it failed to carry out those duties. The complaint’s sixth cause of action
alleged violation of Roybal’s civil rights under 42 United States Code section 1983
(hereafter section 1983) and Civil Code sections 51, 51.7, and 52. It alleged the
individual defendants violated Roybal’s Fourth Amendment rights by improperly
detaining and arresting him, engaging in racial profiling, and using excessive force. As
to the City, the sixth cause of action embodied a section 1983 “Monell” (Monell v. Dept.
of Soc. Serv. Of City of N.Y. (1978) 436 U.S. 658) claim alleging the City had established
policies and procedures that caused the deprivation of Roybal’s constitutional rights.
Summary Judgment Motion
              The City and Vergara filed a motion for summary judgment, or in the
alternative for summary adjudication, arguing the undisputed material facts compelled

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judgment in their favor on all causes of action. The trial court agreed, granted the
motion, and entered the judgment for the City and Vergara from which Roybal appeals.
              On appeal, Roybal only discusses the civil rights cause of action against
Vergara to the extent it was premised on allegations Roybal’s detention and arrest were
unlawful and therefore we limit our discussion of the undisputed facts to that claim and
consider all other claims abandoned. (Oviedo v. Windsor Twelve Properties, LLC (2012)
212 Cal.App.4th 97, 108; Bettencourt v. Hennessy Industries, Inc. (2012) 205
Cal.App.4th 1103, 1109, fn. 5.)
Moving Papers
              Vergara sought summary judgment on the civil rights cause of action on the
grounds there were no disputed material facts as to his involvement in Roybal’s detention
and arrest and no evidence he violated Roybal’s civil rights.
              Vergara’s declaration explained he was one of a number of officers
working undercover in the Santa Ana neighborhood where Roybal was arrested. Vergara
was in an unmarked car patrolling near an apartment building in a high crime area and
known as a “Lopers” street gang hangout. The apartment complex had a semi-
underground garage. Vergara pulled his car into the garage and parked. He heard talking
and laughing from the other side of the garage. He got out of his car and moved closer to
the sound staying out of view. As he got closer, he smelled burning marijuana and saw
three men loitering near a silver car, holding what Vergara believed were marijuana
pipes. Vergara “formed the opinion” the burning marijuana smell was coming from the
three men. He radioed other officers and advised them of his observations. Other
officers came into the garage and engaged the three suspects. Vergara had no further
involvement other than performing perimeter security during the encounter. He did not
participate in interviewing, detaining, searching, or arresting Roybal. He never came
within five feet of Roybal during the encounter. Vergara declared his actions—i.e.,
radioing other officers about a possible crime taking place—were based solely on his

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observations and were not due to Roybal’s ethnicity. Vergara submitted documentary
evidence showing Roybal was arrested for and charged with possession of marijuana for
sale, and held to answer on the charges after his preliminary hearing.
Opposition Papers
              Roybal’s opposition was supported by his declaration and virtually
identical declarations from the two other men who were with him the night he was
arrested. Roybal declared he and the other men were simply socializing in the parking lot
and they were not smoking marijuana. He denied the apartment building was in a high
crime area. Roybal declared that all of a sudden he and his companions were surrounded
by police officers (all of whom remained unnamed and unidentified in Roybal’s
declaration) with guns drawn. The officers yanked Roybal from his car, threw him
against the wall, and then pushed him into a seated position. Roybal refused consent to
search the trunk of his car, but officers searched anyway, finding Roybal’s “medical
marijuana” in the trunk. Roybal told the officers he had a medical marijuana card, but
they denied him access to it. Roybal declared he was eventually found not guilty of any
crime.
              Roybal’s attorney, Michael A. Lotta, submitted his declaration in
opposition to the summary judgment motion, stating he was aware of other cases
involving claims of violation of civil rights of young Hispanic males by Vergara and the
City. He specifically referred to two cases in which he represented the plaintiff. In one,
the plaintiff asserted claims of excessive force and civil rights violations in connection
with his arrest by Vergara. In the other, the plaintiff lived in the same apartment complex
where Roybal was arrested, and Vergara reported the plaintiff was affiliated with the
Lopers gang, but the charges against that plaintiff were dismissed with the exception of
driving on a suspended license.




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Ruling
              In its order granting the summary judgment motion, the trial court made the
following findings concerning Roybal’s sixth cause of action for violation of his civil
rights: “The Court finds there are no triable issues of fact as to the . . . [sixth] cause[] of
action. Vergara had no physical contact with [Roybal], he did not speak to [Roybal], and
he did not arrest [Roybal]. [Vergara] did not touch [Roybal]. He did not point any guns
at [Roybal], yank him from his car, or search his trunk. He did not deny [Roybal] access
to his medical marijuana card. [Roybal] failed to raise a triable issue by presenting
evidence that . . . Vergara fabricated any crimes by [Roybal], and that Vergara is not
immune from liability under [Government Code section] 821.6.”
                                        DISCUSSION
1. Standard of Review
              We review the judgment following the granting of a summary judgment
motion de novo, and are “governed by [Code of Civil Procedure] section 437c, which
provides in subdivision (c) that a motion for summary judgment may only be granted
when, considering all of the evidence set forth in the papers and all inferences reasonably
deducible therefrom, it has been demonstrated that there is no triable issue as to any
material fact and the cause of action has no merit. The pleadings govern the issues to be
addressed. [Citation.]” (Habitat Trust for Wildlife, Inc. v. City of Rancho Cucamonga
(2009) 175 Cal.App.4th 1306, 1331.) A defendant moving for summary judgment must
demonstrate there is no triable issue of fact by “producing evidence that demonstrates
that a cause of action has no merit because one or more of its elements cannot be
established to the degree of proof that would be required at trial, or that there is a
complete defense to it. Once that has been accomplished, the burden shifts to the
plaintiff to show, by producing evidence of specific facts, that a triable issue of material
fact exists as to the cause of action or the defense. [Citation.]” (Ibid.)



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              Although we review a grant of summary judgment de novo (Intel Corp. v.
Hamidi (2003) 30 Cal.4th 1342, 1348), it is always the appellant’s burden on appeal to
demonstrate that the trial court erred. (Boyle v. CertainTeed Corp. (2006) 137
Cal.App.4th 645, 649-650 (Boyle) [“party asserting trial court error may not . . . rest on
the bare assertion of error but must present argument and legal authority on each point
raised”].) We must view the evidence submitted in connection with a motion for
summary judgment in a light most favorable to the party opposing the motion and resolve
“any evidentiary doubts or ambiguities in plaintiff’s favor.” (Saelzler v. Advanced Group
400 (2001) 25 Cal.4th 763, 768 (Saelzler).)
2. Material Issue of Fact on Civil Rights Claims
              We begin our de novo review by considering the relevant law with respect
to a section 1983 claim. To prove a case under section 1983, a plaintiff must demonstrate
that (1) the government’s action occurred under color of state law, and (2) it resulted in
the deprivation of a constitutional right or federal statutory right. (Parratt v. Taylor
(1981) 451 U.S. 527, 535, overruled on other grounds by Daniels v. Williams (1986) 474
U.S. 327, 330.) “In order for a person acting under color of state law to be liable under
section 1983 there must be a showing of personal participation in the alleged rights
deprivation: there is no respondeat superior liability under section 1983.” (Jones v.
Williams (9th Cir. 2002) 297 F.3d 930, 934 (Jones).) Personal participation can be found
if a person was either personally involved in the violation of a right, or was an integral
participant in the conduct giving rise to the violation. (Macias v. County of Los Angeles
(2006) 144 Cal.App.4th 313, 323 (Macias).)
              Officers are not integral participants simply by virtue of being present at the
scene of an allegedly unlawful act. (Jones, supra, 297 F.3d at. p. 935.) For example, in
Torres v. City of Los Angeles (9th Cir. 2008) 548 F.3d 1197, 1206, the Ninth Circuit
found that an officer was not liable for an allegedly unlawful arrest as an integral
participant because she was not present when plaintiff was arrested, did not instruct other

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officers to arrest the plaintiff, and was not consulted before the arrest was made. In
Blankenhorn v. City of Orange (9th Cir. 2007) 485 F.3d 463, 481, at footnote 12, the
court explained an officer who arrived at the scene after completion of the allegedly
unlawful arrest and provided at most crowd control, was not an integral participant. (But
the officers who helped tackle the plaintiff to the ground, handcuffed him prior to the use
of hobble restraints, and ordered the use of hobble restraints were active participants.)
(Ibid.) In Hopkins v. Bonvicino (9th Cir. 2009) 573 F.3d 752, 770, the court concluded
an officer who waited in the front yard interviewing a witness and did not participate in
the allegedly unconstitutional search was not an integral participant. In contrast, in Boyd
v. Benton County (9th Cir. 2004) 374 F.3d 773, 780, officers who were “aware of the
decision to use the flash-bang, did not object to it, and participated in the search operation
knowing the flash-bang was to be deployed” were integral participants in the allegedly
illegal search operation.
              The trial court concluded Vergara had no physical contact with Roybal, he
had no verbal contact with Roybal, and he did not participate in the Roybal’s arrest.
These facts are undisputed, but this does not end the inquiry. For an officer to be liable
under section 1983, there must be a showing of personal participation in the alleged
rights deprivation. Personal participation can be found if a person was either personally
involved in the violation of a right, or was an integral participant in the conduct giving
rise to the violation. (Macias, supra, 144 Cal.App.4th at p. 323.) Vergara correctly
asserted in his motion there were no disputed material facts as to his involvement in
Roybal’s detention and arrest. His involvement was limited to furnishing information
that focused other officers on the suspects.
              The question presented then is whether a trier of fact could find that by
furnishing information to other officers, Vergara played an integral part in the alleged
violations. Vergara did not offer any evidence regarding the responding officers’ basis
for the detentions or arrests. If the evidence at trial demonstrates Vergara’s information

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was the sole basis for Roybal’s detention and arrest, a trier of fact could reasonably find
Vergara played an integral part in the alleged conduct. Evidence the responding officers
independently formed their own reasonable suspicions and probable cause would likely
lead to the conclusion Vergara’s involvement was not integral to the alleged violations.
              We must view the evidence submitted in a light most favorable to the party
opposing the motion and resolve evidentiary doubts or ambiguities in plaintiff's favor.
(Saelzler, supra, 25 Cal.4th at p. 768.) Based on the state of the evidence at the summary
judgment motion, it cannot be said as a matter of law furnishing information that focused
other officers on the suspects is insufficient to constitute integral participation. The
significance of Vergara’s involvement is dependent on factual determinations and must
be determined in light of other evidence.
              Roybal also suggests in passing he should be allowed to maintain a private
cause of action against Vergara for violating Penal Code section 148.5 by making a false
police report. Roybal’s theory is that Vergara fabricated his observations (conveyed to
the other officers who detained, searched, and arrested Roybal) that he smelled burning
marijuana and possibly saw drug paraphernalia. Roybal relies on Fenelon v. Superior
Court (1990) 223 Cal.App.3d 1476, which held a citizen’s allegedly false report to police
about suspect criminal activity could form the basis of a defamation suit. Roybal’s
complaint did not allege a defamation cause of action, nor was this argument raised
below. Moreover, Fenelon is no longer good law. It was expressly rejected by our
Supreme Court in Hagberg v. California Federal Bank (2004) 32 Cal.4th 350, 367-370,
which held such communications, even if false, are absolutely privileged. And Roybal’s
argument completely ignores that Vergara is immune from suit based on any alleged
inaccuracies or falsehoods in his reporting on his investigative activities. (See Gov.
Code, § 821.6 provides that “[a] public employee is not liable for injury caused by his
instituting or prosecuting any judicial or administrative proceeding within the scope of



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his employment, even if he acts maliciously and without probable cause.”].) Accordingly
we need not address this point further.
                                      DISPOSITION
              The judgment is reversed as to Vergara only. In all other respects, the
judgment is affirmed. On remand the trial court is directed to vacate the order granting
summary judgment in favor of Vergara and enter a new and different order denying
summary judgment and granting summary adjudication on the complaint’s first five
causes of action and denying summary adjudication on the complaint’s sixth cause of
action for violation of civil rights. Appellant is awarded his costs on appeal.




                                                  O’LEARY, P. J.

WE CONCUR:



ARONSON, J.



FYBEL, J.




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