Filed 12/29/16 Certified for partial publication 1/25/17 (order attached)




                   COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                DIVISION ONE

                                         STATE OF CALIFORNIA



KENNETH SIMMONS,                                              D070734

         Petitioner,                                          (San Diego County
                                                               Super. Ct. No. 37-2015-00012269-CU-
         v.                                                    CR-CTL)

THE SUPERIOR COURT OF SAN
DIEGO COUNTY,

         Respondent;

THE CITY OF SAN DIEGO, et al.,

         Real Parties in Interest.



         PROCEEDINGS in mandate after the superior court granted summary

adjudication in favor of real parties in interest. Gregory W. Pollack, Judge. Petition

granted in part, denied in part.

         Sias | Carr, Peter L. Carr, IV, NaShaun L. Neal; Filer | Palmer and Justin A.

Palmer for Petitioner.

         No appearance for Respondent.
       Jan I. Goldsmith, City Attorney, Daniel F. Bamberg, Assistant City Attorney,

Keith W. Phillips, Deputy City Attorney, for Real Parties in Interest.


       San Diego police officers Carlos Robles and Kyle Williams initiated contact with

plaintiff Kenneth Simmons for being in a city park after it closed and for riding a bicycle

in the dark without a headlight. Simmons fled. The officers pursued, detained, and

searched him, finding a plastic baggie containing rock cocaine. Simmons was charged

with possessing a controlled substance, using a weapon in a fight, and resisting an officer.

A jury was unable to reach a verdict on the drug possession count and acquitted him on

the others.

       Simmons then brought a civil action against the City of San Diego (the City) and

the officers (collectively, defendants) asserting (among others) claims under the Tom

Bane Civil Rights Act (Bane Act; Civ. Code,1 § 52.1), which authorizes civil actions by

individuals whose federal or state rights have been interfered with by "threat,

intimidation, or coercion"; and under the Ralph Civil Rights Act of 1974 (Ralph Act;

§ 51.7), which authorizes civil actions by individuals subjected to violence or

intimidation because of their membership in a protected class. Simmons, who is African-

American, alleged the officers violated these statutes by using excessive force during his

arrest, pulling his underwear into a "wedgie" while searching him, and conducting a

nonconsensual physical body cavity search of his rectum.




1      Undesignated statutory references are to the Civil Code.
                                             2
      Defendants moved for summary adjudication of the Bane Act and Ralph Act

claims. The trial court granted the motion. Simmons filed a petition for writ of mandate,

which defendants opposed. We issued an order to show cause why we should not grant

the requested relief. For reasons we will explain, we grant the petition as to Simmons's

Bane Act claim, but deny it as to his Ralph Act claim.

                  FACTUAL AND PROCEDURAL BACKGROUND

               I. The Underlying Incident and Simmons's Criminal Case2

      On the night of May 17, 2014, San Diego police officers Robles and Williams

were patrolling Memorial Park (the park). They observed Simmons straddling his

bicycle next to four Hispanic males who were standing by a park bench. The officers

activated the emergency lights on their patrol vehicle and told another group of people

that the park was closed. Simmons fled on his bicycle and the officers pursued him in

their vehicle. After 10 to 20 seconds, Williams exited the vehicle and pursued Simmons

on foot. When Williams caught up about 10 seconds later, he "bear hug[ged]" Simmons

to the ground.3 The officers handcuffed Simmons, searched him, and found a baggie

containing rock cocaine. Simmons was arrested and later charged with possessing a

controlled substance (Health & Saf. Code, § 11350, subd. (a)); resisting an executive

officer (Pen. Code, § 69); using a deadly weapon in a fight (Pen. Code, § 417, subd.

2     We take judicial notice of the Superior Court's records in People v. Kenneth
Dewayne Simmons (Super. Ct. San Diego County, No. SCD256148). (Evid. Code,
§§ 452, subd. (d), § 459, subd. (a).)

3       Williams testified Simmons pulled a pocketknife on him but he was able to elbow
it out of Simmons's hand.
                                            3
(a)(1)); and willfully resisting, delaying, or obstructing a peace officer (Pen. Code, § 148,

subd. (a)(1)).

       Simmons moved to suppress the prosecution's evidence on the basis the officers'

warrantless detention and search of him was presumptively unreasonable. The motion

was denied.

       In October 2014, a jury hung on the drug possession count and acquitted Simmons

on the remaining counts. During deliberations in the criminal trial, the jury submitted the

following question: "If the defendant willfully resisted a peace officer while the officer

was lawfully performing his duties (and the defendant knew the officer was performing

his duties and was an officer), but the officer subsequently performed his duties

unlawfully during the same encounter, is the defendant guilty of Pen. Code § 148 in

Count 2 (the lesser offense [to resisting an executive officer]?" (Italics added.)

                              II. Simmons's Civil Complaint

       In April 2015, Simmons filed a civil lawsuit against the City, the San Diego Police

Department,4 and the officers, asserting causes of action for battery (officers only),

sexual assault (officers only), violating the Bane Act (all defendants), violating the Ralph

Act (all defendants), intentional infliction of emotional distress (all defendants), negligent

supervision (City only), and negligence (all defendants). His operative second amended

complaint alleges the following narrative.




4      Simmons eventually dismissed the department on the basis it is not an entity
separate from the City.
                                              4
       About 10:20 p.m. on May 17, 2014, Simmons was lawfully riding his bicycle and

listening to music in the park when he was profiled by Robles and Williams. Without

reasonable suspicion or probable cause, the officers "allegedly trailed behind [him] to

inform him about the need of using a bike light [with] which his bike was already

equipped." Simmons did not hear the officers trailing behind him because he was

wearing earphones and listening to music. The officers approached Simmons without

reasonable suspicion or probable cause and accused him of attempting to evade them

because he allegedly possessed drugs. "After [Simmons] repeatedly denied that he

possessed drugs, [the officers] then told [him] that they believed that he inserted the

drugs [into] his rectum and that they were going to retrieve them with their hands.

[Simmons] begged [the officers] not to violate him in that way." The officers "conducted

anal cavity searches on [Simmons]'s body without his consent on at least two separate

occasions: once while on the side of the street and [again] when [the officers] placed him

in the patrol vehicle." The officers also hit Simmons repeatedly in the head and torso

"causing multiple contusions and partially causing [Simmons] to defecate on himself."

       In support of his Bane Act claim, Simmons alleged the officers "violated [his]

right to be free of unreasonable searches" by conducting warrantless and nonconsensual

physical body cavity searches. Invoking the statutory language, Simmons alleged the

officers (1) threatened "that they were going to perform an illegal anal cavity search . . .

and carried out that threat"; (2) intimidated Simmons "by handcuffing him, punching and

kicking him in the stomach and face and pulling down his pants prior to forcefully

conduc[t]ing an anal cavity search . . ."; and (3) coerced him when he "was held against

                                              5
his will and beaten by [the officers] while they forcefully conducted an anal cavity search

on him." Simmons alleged the officers' conduct was "deliberate and spiteful and

specifically aimed [at] depriving him of his [F]ourth [A]mendment right[s]."

       In support of his Ralph Act claim, Simmons alleged the officers interfered with the

exercise or enjoyment of his statutory and constitutional rights "by the unreasonable use

of excessive force perpetrated on him in a racially motivated manner."

                      III. Defendants' Summary Adjudication Motion

       The City and the officers moved for summary adjudication of Simmons's Bane Act

and Ralph Act causes of action.

                               A. Defendants' Moving Papers

                                         1. Bane Act Claim

       Defendants argued they were entitled to summary adjudication of Simmons's Bane

Act claim because no liability arises under the act when an arrest is lawful. They asserted

the officers had probable cause to arrest Simmons, were entitled to use force in doing so,

and did not threaten Simmons beyond telling him to stop resisting.

       Defendants maintained the officers had probable cause to detain Simmons for

three reasons. First, "for being in a City park after it was closed." They submitted

evidence showing (1) the officers encountered Simmons at approximately 10:20 p.m.; (2)

the park closed at 10:00 p.m.; and (3) it is a violation of the San Diego Municipal Code to

be in a city park after it has closed.

       Second, defendants argued the officers "had separate probable cause to detain

[Simmons] for riding a bicycle in a time of darkness without a light in violation of

                                                6
Vehicle Code section 21202."5 Each officer submitted a declaration stating the

following: "I saw [Simmons] riding his bicycle at approximately 10:20 p.m. I did not

see any lamp emitting white light on the ground or sidewalk in front of Simmons as he

was riding a bicycle that night. Even after arresting [Simmons], I did not see a lamp

emitting white light on Simmons'[s] bicycle or on Simmons himself." Defendants

submitted as an exhibit a video captured by Williams's body-worn camera during the

incident to show that it was dark when Simmons was riding his bicycle.

       Third, defendants asserted the officers "had probable cause to detain [Simmons]

for willfully resisting, delaying and obstructing a peace officer in violation of Penal Code

section 148." The officers' declarations stated: "We activated our patrol vehicle's

overhead blue and red lights while trailing behind Simmons on his bicycle to stop him.

Simmons looked back, did not yield and kept pedaling his bicycle away from us as fast as

he could. [Simmons] proceeded to ride his bicycle into a dark alleyway. When we

finally caught Simmons, he fought our efforts to arrest and search him, presumably to

prevent us from searching his right front pocket where we found his crack cocaine. The

body camera video footage shows our search of [Simmons] and our removing a baggie

with crack cocaine from Simmons['s] right front coin pocket . . . ." Although the officers




5      The version of Vehicle Code section 21201, subdivision (d)(1) in effect on May
17, 2014 provides in part: "A bicycle operated during darkness upon a highway, a
sidewalk . . . , or a bikeway . . . , shall be equipped with [¶] . . . [¶] [a] lamp emitting a
white light that, while the bicycle is in motion, illuminates the highway, sidewalk, or
bikeway in front of the bicyclist and is visible from a distance of 300 feet in front and
from the sides of the bicycle."
                                                7
found drugs in Simmons's possession, they did not cite suspicion of drug possession as a

basis for probable cause to detain him.

       Defendants maintained that because the officers had probable cause to detain or

arrest Simmons, they were "entitled to use coercion and threats and intimidation" in

doing so. They nevertheless denied making any threats (beyond telling Simmons to stop

fleeing and resisting) or using excessive force (as demonstrated by the footage from the

body-worn camera).

       Defendants' motion did not reference Simmons's allegations that the officers had

conducted nonconsensual physical body cavity searches.

                                    2. Ralph Act Claim

       Defendants argued Simmons's Ralph Act claim failed because he had no evidence

the officers' conduct was racially motivated. The officers' declarations asserted they

"never considered Simmons'[s] race, color, ancestry, or national origin when [they] made

[their] decision to contact Simmons and to ultimately detain and arrest him." Defendants

also lodged Simmons's interrogatory responses in which he (1) identified the officers as

the only persons having knowledge of why they arrested him; and (2) stated he was

"unable to read the mind[s] of" the officers "and as such, is unable to answer" the

interrogatory asking him to "[d]escribe in detail all reasons why [the officers] arrested

[him]." Defendants also cited as an admission the allegation in Simmons's complaint that

the officers "trailed behind [him] to 'inform him about the need of using a bike light.' "




                                              8
                                 B. Simmons's Opposition

                                     1. Bane Act Claim

       Simmons argued his Bane Act claim survived summary adjudication because

factual disputes existed regarding whether the officers had probable cause to arrest him

and whether they engaged in the requisite coercion, intimidation, or threats.

       Regarding probable cause for the municipal code violation, Simmons did not

dispute that (1) he was in the park at about 10:20 p.m., (2) the park had closed at 10:00

p.m., and (3) it was a violation of the municipal code to be in a city park after it closed.

However, he cited testimony from Williams's deposition in which Williams said he

considered Simmons free to ride his bicycle away when the officers began to drive

toward him, thereby "[i]mplicit[ly] . . . admi[tting] . . . the officers did not have probable

cause to arrest" Simmons for the municipal code violation.

       As to probable cause for the Vehicle Code violation, Simmons did not dispute the

requirements of the Vehicle Code or that he was riding his bicycle in the dark. However,

he cited his deposition testimony to establish that he had a headlight "on the handlebars,

like [he] always put it." He acknowledged the body-worn camera footage did not show

such a light, but he surmised it fell off during the pursuit. Simmons also cited the

officers' deposition testimony to establish that, at the precise moment the officers began




                                               9
pursuing him for an alleged Vehicle Code violation, neither officer could determine

whether Simmons had a headlight on the front of his bicycle.6

       Regarding probable cause for resisting the officers, Simmons explained he initially

fled when he saw the officers because of an incident that occurred near the park a few

weeks earlier. Simmons said he was riding his bicycle with a friend when Robles and his

partner (possibly Williams) conducted a nonconsensual search of Simmons and beat him

for two to three minutes in the back of their patrol vehicle before releasing him without

charges. Thus, when he saw the officers on May 17, he feared for his life and rode off as

fast as he could.




6         Williams initially testified in his deposition that he saw the bicycle's handlebars as
Simmons rode off: "Q: So you are behind Mr. Simmons as he's riding his bike?
[¶] . . . [¶] A: Correct. [¶] . . . [¶] Q: Okay. So you had no idea whether there was a
bike light violation at that time, right?" [¶] A: Well, from my side of the police car, I
remember it being offset. And from the passenger's seat, I could see onto the front of the
bicycle where, for the California law, where the light should be attached to it."
          However, after being shown a transcript of his testimony from Simmons's criminal
trial, Williams revised his testimony: "Yeah, it refreshes my memory. I know from
reading my testimony that I didn't see the bicycle light until we got in behind him."
          Robles testified in his deposition that he was not able to see the front of Simmons's
bicycle as he rode off: "Q: Okay. And when [Simmons] . . . turned away and . . . started
pedaling it away . . . from you, were you able to see the front of his bike? [¶] A: Not at
the point that he was pedaling away from us, because we were, I would say, maybe 15
feet away. [¶] Q: Okay. So if he had . . . activated lights on his bike when he started
pedaling away, you would not have been able to see that, correct? [¶] . . . [¶] A: I would
be able to see the rear light but not the front light. [¶] . . . [¶] Q: Okay. And do you
recall seeing that there were three lights on the bike? [¶] A: I did not see any lights lit
on his bike. [¶] Q: Oh, okay. But I'm saying, did you see that there were three lights on
his bike? [¶] A: Not lit. That's the best answer I could give you. So if they were on his
bike, I do not recall seeing lights . . . lit on his bike."

                                              10
       Apart from the lawfulness of his arrest, Simmons argued the officers engaged in

coercive, intimidating, and threatening conduct "independent from" and "separate from

the initial arrest." Citing his own deposition testimony (and other evidence), Simmons's

opposition provided the following narrative.

       When Simmons realized after riding away on his bicycle that the officers were

pursuing him, he stopped in an alleyway, inserted a baggie containing rock cocaine into

his rectum, and kneeled on the ground. Williams grabbed him, threw him to the ground,

and punched him. As Williams attempted to handcuff Simmons without explaining that

he was under arrest, a "struggle ensued" during which Williams struck Simmons several

times. Robles caught up and joined in, striking Simmons in the face, kicking him in the

back, and hitting him in the head several times with a flashlight. The officers handcuffed

Simmons and removed a knife from his waistband. Williams put on black latex gloves

and the officers began to search Simmons. During the search, Robles asked Simmons if

his friend from the previous police encounter was in the park that night.

       Robles then escorted Simmons down the alley toward the patrol vehicle. On the

way, Robles said, "We're going to do a cavity search on you." Simmons responded, "No,

I'm not a [Fourth Amendment] waiver, you can't do that." Williams stated, "Yes, we

are." Robles leaned Simmons on the hood of the patrol vehicle, but Simmons fell to the

ground. Robles then got on top of Simmons and repeatedly struck him in the abdomen.

Williams pressed Simmons's head against the concrete.

       After Simmons repeatedly denied that he possessed any drugs, the officers stated

they believed he inserted them in his rectum. The officers searched Simmons's pockets

                                            11
and removed a plastic baggie. Williams pulled Simmons's underwear into a "wedgie"

and inserted an unknown number of fingers into Simmons's rectum. Robles also

penetrated Simmons's rectum. Simmons said the officers penetrated him as many as four

times and to a depth that hurt and caused him to defecate a little in his underwear.

       Simmons submitted excerpts from the deposition of Denise Phillips, the mother of

his child. She said she heard Simmons yelling for help during the incident and responded

to the scene. She saw that Williams had his gloved "hand near [Simmons's] butt crack"

and "was searching around his private areas." She said Robles told her Simmons is "not

as innocent as [you] fuckin' think he is."

       In his opposition, Simmons argued that the facts in this narrative established the

coercion, intimidation, or threats necessary to establish a Bane Act claim. Specifically,

he argued the officers coerced him by (1) punching him several times when he posed no

danger to the officers, (2) "pull[ing] [his] underwear into a wedgie," and (3) Williams

"plac[ing] his hand into Simmons'[s] rectum to perform an anal cavity search. This

conduct was not necessary to perform a search incident to arrest." Simmons argued

Robles intimidated him by asking whether his friend from their previous encounter was

among the group of men at the bench, which Simmons asserted "was a dog whistle to

remind Simmons about being roughed up by [Robles] and his partner . . . ." Finally,

Simmons argued the officers threatened him by (1) telling him they were going to

perform a physical body cavity search, to which he objected, and (2) pulling his

underwear into a wedgie and saying they were going to do a physical body cavity search.



                                             12
                                   2. Ralph Act Claim

       Simmons argued his Ralph Act claim survived summary adjudication because,

apart from the officers' self-serving declarations, circumstantial evidence indicated they

were racially motivated. That is, the officers pursued Simmons—the only African-

American male in the group of men at the bench—when "there was no reason for the

officers to follow Simmons over the [four] Hispanic" men. Thus, he reasoned, "a

reasonable jury could find based on targeting the sole African-American in a group, that

the officers[ ] singled-out Simmons because of his race."

       Simmons argued the inference of racial motivation was bolstered by "his past

experiences with racial profiling by the San Diego Police Department." Phillips testified

in her deposition that she had observed such profiling of Simmons and had experienced it

herself.

       Finally, for the same reasons he argued the officers lacked probable cause to arrest

him, Simmons argued the officers could not use the alleged municipal code or Vehicle

Code violations as post hoc justifications for singling him out.

                                  C. Defendants' Reply

       In reply, defendants reiterated their argument there was no Bane Act violation

because the officers had three grounds of probable cause to arrest Simmons and,

therefore, were entitled to use reasonable force to overcome his resistance and take him

into custody. Further, they reasoned that because the officers were entitled to arrest

Simmons, they were entitled to search him incident to arrest. Finally, defendants argued

there was no factual issue regarding whether a physical body cavity search occurred:

                                             13
"The video does not lie and does not create a triable issue of fact because it shows the

officers did not search Simmons'[s] rectum."

       Defendants argued there were no triable issues of fact on the Ralph Act claim

because it was undisputed Simmons was the only person by the bench who was on a

bicycle and who "rode away as fast as he could." They clarified that although the officers

could not immediately tell that Simmons did not have a headlight on his bicycle, probable

cause arose "after Simmons fled, riding away as fast as he could, [when] the Officers saw

he did not have a forward facing bicycle light at night." (Underscoring omitted.)

                                 D. Trial Court's Ruling

       The trial court construed the Bane Act as providing that so long as the officers had

probable cause to arrest Simmons, no Bane Act liability could arise from their conduct in

association with that lawful arrest. The court based its interpretation entirely on Bender

v. County of Los Angeles (2013) 217 Cal.App.4th 968 (Bender) and the cases discussed

therein.

       The court then found the officers "had probable cause to detain Simmons, or even

arrest him, based upon either or both the Municipal Code violation and the Vehicle Code

violation."7 Regarding the former, the court found it was undisputed that Simmons

violated the municipal code by being in the park after it closed. Regarding the latter, the

court noted the officers' testimony they did not see light emitting from the front of

Simmons's bicycle, and observed that the video showed there was no light on the bicycle


7       The court remarked that its probable cause finding "shouldn't shock anyone" in
light of the denial of Simmons's suppression motion in his criminal case.
                                             14
when the officers finally apprehended Simmons. Significantly, the court found that

Simmons's testimony that he had a headlight on his bicycle did not create a triable issue

because it did not establish the light, "if, indeed, he even had one, was such that it could

provide illumination from 300 feet away as required . . . ." The court made no findings

with respect to Simmons's assertion the officers had conducted nonconsensual physical

body cavity searches.

       The court also found Simmons's Ralph Act claim failed. Defendants met their

initial burden when the officers "den[ied] that race played any role in their decision to

contact, detain, or arrest plaintiff. Simmons, himself, concede[d] that he [did] not know

what was going on in the mind[s] of Williams and Robles." As for Simmons's theory that

the officers singled him out of a group containing four Hispanic males because he was

the lone African-American, the trial court explained "it was only Simmons, on a bicycle,

who sped off as fast as he could upon witnessing [the officers'] arrival. Under these

circumstances, it cannot be said that [the officers'] decision to follow Simmons was

racially motivated. That Simmons is African-American and Williams and Robles are not,

alone, does not give rise to a reasonable inference that Williams'[s] and Robles'[s] actions

were substantially motivated by race."

                                   E. Writ Proceedings

       Simmons filed a petition for writ of mandate seeking an order compelling the trial

court to vacate its summary adjudication ruling. Defendants filed an informal response.

We issued an order to show cause why we should not grant the relief requested. Our

order provided that, "[a]bsent objection . . . , the informal response filed by [defendants]

                                             15
will be deemed [the respondent court's] return to the order to show cause. In the event of

an objection, [defendants] may file a return to the order to show cause . . . . [Simmons]

may file a reply . . . ." Neither defendants nor Simmons submitted any further briefing.

                                        DISCUSSION

                            I. Summary Adjudication Principles

       A defendant moving for summary adjudication "bears the burden of persuasion

that there is no triable issue of material fact and that [the defendant] is entitled to

judgment as a matter of law." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826,

850 (Aguilar); Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 859 (Serri).)

To meet this burden, the defendant must show one or more elements of the cause of

action cannot be established, or that there is a complete defense to that cause of action.

(Ibid.) The defendant may make this showing by relying on the plaintiff's "factually

devoid discovery responses." (Union Bank v. Superior Court (1995) 31 Cal.App.4th 573,

590.) If the defendant does not present sufficient evidence to meet its initial burden, the

court must deny the summary adjudication motion. (Aguilar, at p. 850.)

       Once the defendant satisfies its burden, " 'the burden shifts to the plaintiff . . . to

show that a triable issue of one or more material facts exists as to that cause of action or a

defense thereto.' " (Aguilar, supra, 25 Cal.4th at p. 849.) The plaintiff may not rely upon

the mere allegations or denials of his pleadings to show a triable issue of material fact

exists. (Ibid.)

       We review a summary adjudication de novo. (Buss v. Superior Court (1997) 16

Cal.4th 35, 60.) "In practical effect, we assume the role of a trial court and apply the

                                               16
same rules and standards which govern a trial court's determination of a motion for

summary judgment." (Lenane v. Continental Maritime of San Diego (1998) 61

Cal.App.4th 1073, 1079.) Thus, we apply the same three-step analysis trial courts use:

"First, we identify the issues framed by the pleadings. Second, we determine whether the

moving party has established facts justifying judgment in its favor. Finally, in most

cases, if the moving party has carried its initial burden, we decide whether the opposing

party has demonstrated the existence of a triable issue of material fact." (Serri, supra,

226 Cal.App.4th at pp. 858-859.) In doing so, "[w]e liberally construe the evidence in

support of the party opposing summary judgment and resolve doubts concerning the

evidence in favor of that party." (Wilson v. 21st Century Ins. Co. (2007) 42 Cal.4th 713,

717.) Because "[s]ummary judgment is a drastic measure that deprives the losing party

of a trial on the merits . . . [,] [a]ny doubts as to the propriety of granting the motion

should be resolved in favor of the party opposing the motion." (Molko v. Holy Spirit

Assn. (1988) 46 Cal.3d 1092, 1107, superseded by statute on other grounds as stated in

Aguilar, supra, 25 Cal.4th at p. 853, fn. 19.)

                               II. Simmons's Bane Act Claim

                                   A. Bane Act Overview

       The Bane Act provides a civil cause of action against anyone who "interferes by

threat, intimidation, or coercion, or attempts to interfere by threat, intimidation, or

coercion, with the exercise or enjoyment by any individual or individuals of rights

secured by the Constitution or laws of the United States, or of the rights secured by the



                                               17
Constitution or laws of this state." (§ 52.1, subd. (a); see §52.1, subd. (b).)8 Although

initially enacted "to stem a tide of hate crimes" (Jones v. Kmart Corp. (1998) 17 Cal.4th

329, 338), "a plaintiff need not allege the defendant acted with discriminatory animus or

intent; a defendant is liable if he or she interfered with the plaintiff's constitutional rights

by the requisite threats, intimidation, or coercion" (Austin B., supra, 149 Cal.App.4th at

p. 882; see Venegas v. County of Los Angeles (2004) 32 Cal.4th 820, 841-843). "The

essence of a Bane Act claim is that the defendant, by the specified improper means (i.e.,

'threats, intimidation or coercion'), tried to or did prevent the plaintiff from doing

something he or she had the right to do under the law or to force the plaintiff to do

something that he or she was not required to do under the law." (Austin B., at p. 883.)

       Shoyoye v. County of Los Angeles (2012) 203 Cal.App.4th 947 (Shoyoye) clarified

that the Bane Act requires that the challenged conduct be intentional. There, the plaintiff

sued a county after he was lawfully arrested but inadvertently overdetained by 16 days

due to a paperwork error. (Shoyoye, at p. 951.) Based on "multiple references to


8       Section 52.1 provides in part: "(a) If a person or persons, whether or not acting
under color of law, interferes by threat, intimidation, or coercion, or attempts to interfere
by threat, intimidation, or coercion, with the exercise or enjoyment by any individual or
individuals of rights secured by the Constitution or laws of the United States, or of the
rights secured by the Constitution or laws of this state, the Attorney General, or any
district attorney or city attorney may bring a civil action for injunctive and other
appropriate equitable relief in the name of the people of the State of California, in order
to protect the peaceable exercise or enjoyment of the right or rights secured. . . . [¶] (b)
Any individual whose exercise or enjoyment of rights secured by the Constitution or laws
of the United States, or of rights secured by the Constitution or laws of this state, has
been interfered with, or attempted to be interfered with, as described in subdivision (a),
may institute and prosecute in his or her own name and on his or her own behalf a civil
action for damages . . . ."

                                               18
violence or threats of violence" in other subdivisions of section 52.1, the court concluded

the statute "was intended to address only egregious interferences with constitutional

rights, not just any tort. The act of interference with a constitutional right must itself be

deliberate or spiteful." (Id. at p. 959.) The court also "conclude[d] that where coercion is

inherent in the constitutional violation alleged, i.e., an overdetention in [c]ounty jail, the

statutory requirement of 'threats, intimidation, or coercion' is not met. The statute

requires a showing of coercion independent from the coercion inherent in the wrongful

detention itself." (Ibid.)

       Bender, supra, 217 Cal.App.4th 968—the sole case cited in the trial court's

summary adjudication ruling—applied Shoyoye in the context of an unlawful arrest

accompanied by the use of excessive force. There, the plaintiff sued a sheriff's deputy

and county after he was arrested without probable cause and beaten and pepper sprayed

while handcuffed and not resisting arrest. (Id. at pp. 972-973.) The jury found for the

plaintiff on his Bane Act claim, and the trial court denied the defendants' posttrial

motions. (Bender, at pp. 975-976.) The court of appeal affirmed, "conclud[ing] the Bane

Act does not require a showing of a violation of a constitutional right separate from the

Fourth Amendment violation . . . ." (Id. at p. 977, fn. 4.) The court explained "the Bane

Act applie[d] because there was a Fourth Amendment violation—an arrest without

probable cause—accompanied by the beating and pepper spraying of an unresisting

plaintiff, i.e., coercion that is in no way inherent in an arrest, either lawful or unlawful."

(Id. at p. 978, italics added.) The court "emphasize[d]," however, that this was not "a

case involving the use of excessive force during an otherwise lawful arrest based on

                                              19
probable cause." (Ibid., italics added.) The court concluded it "need not weigh in on

th[at] question . . . ." (Ibid.)

       The parties have not cited, and we have not found, a California case that addresses

the precise question presented here: whether a Bane Act claim arises from excessive

force or an unlawful search following a lawful arrest. However, the majority of federal

district courts in California have held that "[w]here Fourth Amendment unreasonable

seizure or excessive force claims are raised and intentional conduct is at issue, there is no

need for a plaintiff to allege a showing of coercion independent from the coercion

inherent in the seizure or use of force."9 (Dillman v. Tuolumne County (E.D. Cal., May

7, 2013, No. 1:13-CV-00404-LJO-SKO) 2013 WL 1907379, at *21 [applying rule to

"unreasonable strip search"]; see Morse v. County of Merced (E.D. Cal., June 13, 2016,

No. 1:16-CV-00142-DAD-SKO) 2016 WL 3254034, at *12 [this rule is "the weight of

authority among District Courts in California"]; Mann v. County of San Diego (S.D. Cal.

2015) 147 F.Supp.3d 1066, 1092 ["the majority of courts" follow this rule].)

                                        B. Analysis

       We need not determine whether a plaintiff can establish Bane Act liability without

showing the challenged conduct is separate and independent from inherently coercive

underlying conduct (like an arrest). Even assuming the officers had probable cause to



9      "Because many Ralph Act and Bane Act claims are alleged along with a federal
claim under 42 U.S.C.A. § 1983 or one of the other federal civil rights statutes, it is quite
common for claims under the Ralph Act and Bane Act to be filed in or removed to
federal court." (Cal. Civil Practice (Thomson Reuters 2011) Civil Rights Litigation,
§ 3:28.)
                                             20
arrest Simmons, the complained-of conduct asserted here—multiple nonconsensual,

roadside, physical body cavity searches—is necessarily intentional conduct that is

separate and independent from a lawful arrest for being in a park after it closed, for

riding a bicycle in the dark without a headlight, or for resisting a peace officer.

Defendants do not contend otherwise.10 Indeed, their response to Simmons's writ

petition makes absolutely no mention of the physical body cavity searches. Thus, so long

as Simmons has shown that a triable issue of fact exists with respect to whether the

searches occurred, summary adjudication of his Bane Act claim is not proper.

       Although defendants make no mention of the searches on appeal, they argued

below that Williams's body-worn camera footage "does not lie and does not create a

triable issue of fact because it shows the officers did not search Simmons'[s] rectum."

We have reviewed the video and find that it is not so conclusive as to entitle defendants

to summary adjudication. It begins shortly after Williams bear-hugged Simmons to the

ground and runs continuously for eight minutes 44 seconds until the officers placed him

in the patrol vehicle. About one minute into the video, Williams puts on black latex

gloves. At about the 3:40 mark, Simmons pulls the left side of his underwear into a

wedgie and Robles grabs the underwear with his bare hand to stop him. One officer asks,

"Did you get it?" The other responds, "I think he shoved it in his ass." Williams then

pulls the right side of Simmons's underwear into a wedgie (exposing both sides of


10       Nor do defendants attempt to explain how the alleged searches complied with the
strict statutory regulations that govern physical body cavity searches. (See, e.g., Pen.
Code, § 4030, subd. (j) ["A physical body cavity search shall be conducted under sanitary
conditions, and only by [specified medical personnel]."].)
                                              21
Simmons's buttocks) and manipulates the upper part of the underwear with his hand. At

about the 5:00 mark, Williams removes a plastic baggie from Simmons's right front coin

pocket. One officer asks, "Is it an empty bag? Or have you checked?" There is no

audible response. At about the 6:55 mark, Williams tells Simmons, "Stop trying to shove

it up you." Simmons responds, "I'm not. I'm not trying to shove nothing." The officers

then stand Simmons up, search his sweatshirt, and place him in the patrol vehicle. The

video does not appear to depict either officer digitally penetrating Simmons's rectum as

he claims occurred. However, the video does not constantly display both officers' hands

and Simmons's buttocks, and does show the officers manipulating his underwear using

their hands in the vicinity of his partially exposed buttocks. Thus, we cannot find the

video conclusively establishes that no physical body cavity searches or other potentially

actionable conduct occurred. Because Simmons established a triable issue of fact on this

issue, the trial court erred in granting summary adjudication on his Bane Act claim.

                                      III. Ralph Act

       Simmons contends the trial court also erred by summarily adjudicating his Ralph

Act claim because a factual issue exists regarding whether the officers' conduct was

racially motivated. We disagree.

       The Ralph Act provides that "[a]ll persons within the jurisdiction of this state have

the right to be free from any violence, or intimidation by threat of violence, committed

against their persons or property because of," among other things, their race. (§§ 51.7,




                                            22
51, subd. (b).)11 The elements of a Ralph Act cause of action are: (1) the defendant

committed a violent act against the plaintiff or his property; (2) a motivating reason for

that conduct was his perception of the plaintiff's race; (3) the plaintiff was harmed; and

(4) the conduct was a substantial factor in causing the plaintiff's harm. (Austin B., supra,

149 Cal.App.4th at pp. 880-881; see CACI No. 3063.) We are concerned here with the

second element.

       Defendants carried their initial summary adjudication burden by submitting (1) the

officers' declarations asserting they did not consider Simmons's race in deciding to detain

or arrest him; and (2) Simmons's discovery responses proclaiming his inability to read the

officers' minds and identifying them as the only people who know why they arrested him.

Thus, the burden shifted to Simmons to show the existence of a triable issue of material

fact. (Aguilar, supra, 25 Cal.4th at p. 849.) He failed to do so.

       First, we are unpersuaded that the officers' pursuit of Simmons over the four

Hispanic males at the park bench establishes racially motivated disparate treatment.

Although all five men were in the park after it closed and thus the officers would have


11      Section 51.7, subdivision (a) provides in part: "All persons within the jurisdiction
of this state have the right to be free from any violence, or intimidation by threat of
violence, committed against their persons or property because of political affiliation, or
on account of any characteristic listed or defined in subdivision (b) or (e) of Section 51,
or position in a labor dispute, or because another person perceives them to have one or
more of those characteristics."
        Section 51, subdivision (b) provides: "All persons within the jurisdiction of this
state are free and equal, and no matter what their sex, race, color, religion, ancestry,
national origin, disability, medical condition, genetic information, marital status, sexual
orientation, citizenship, primary language, or immigration status are entitled to the full
and equal accommodations, advantages, facilities, privileges, or services in all business
establishments of every kind whatsoever." (Italics added.)
                                             23
been justified in detaining any or all of them, it is undisputed that Simmons was the only

one on a bicycle and the only one who fled from the officers. Williams testified in his

deposition that based on his "training and experience, most people who run end up having

warrants for their arrest or they don't want any sort of police contact."

       Simmons's characterization of the officers' pursuit of him for a Vehicle Code

violation as a post hoc rationalization is unavailing. The officers' declarations assert they

"did not see any lamp emitting white light on the ground or sidewalk in front of Simmons

as he was riding a bicycle," and they found no light on his bicycle or body when they

arrested him. Simmons's suggestion that the officers could not immediately see the front

of his bicycle from their vantage points ignores how brief the pursuit was—10 to 20

seconds—and the fact the officers spoke not only of not seeing a headlight but also of not

seeing light emitted on the ground. The allegation in Simmons's complaint that the

officers "trailed behind [him] to inform him about the need of using a bike light" further

undermines the suggestion they were following him because of his race.12 Finally, as the

trial court noted, Simmons's testimony that he had a headlight on his bicycle did not

establish that it complied with the Vehicle Code requirements.




12     Simmons objected below on the basis that "[a]llegations in the complaint [are] not
evidence." However, " ' "A defendant moving for summary judgment may rely on the
allegations contained in the plaintiff's complaint, which constitute judicial admissions.
As such they are conclusive concessions of the truth of a matter and have the effect of
removing it from the issues." [Citations.]' [Citation.]" (Mark Tanner Construction, Inc.
v. HUB Internat. Ins. Servs., Inc. (2014) 224 Cal.App.4th 574, 586-587.)
                                             24
       Simmons also notes he and the officers are of different races. However, he cites

no authority and offers no persuasive argument why this fact, standing alone, establishes

the officers were racially motivated.

       Finally, Simmons's assertion that he and Phillips have prior experiences being

racially profiled by the police is insufficient to overcome defendants' evidence regarding

these officers' mental state on May 17, 2014. Relatedly, Phillips's assertion that Robles

told her Simmons is "not as innocent as [she] fuckin' think[s] he is" sheds no light on

whether Robles's pursuit of Simmons was racially motivated.

       Because Simmons failed to meet his burden of demonstrating the existence of a

triable issue of fact regarding the motive element of his Ralph Act claim, the trial court

properly granted summary adjudication of this claim in favor of defendants.

                                        DISPOSITION

       Let a writ of mandate issue commanding the superior court to vacate the portion of

its summary adjudication order to the extent it granted summary adjudication in

defendants' favor on Simmons's Bane Act claim. The parties shall bear their own costs

on appeal.


                                                                     HALLER, Acting P. J.

WE CONCUR:

AARON, J.

IRION, J.




                                             25
Filed 1/25/17
                       CERTIFIED FOR PARTIAL PUBLICATION*

                COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                       DIVISION ONE

                                    STATE OF CALIFORNIA



KENNETH SIMMONS,                                D070734

        Petitioner,                             (San Diego County
                                                 Super. Ct. No. 37-2015-00012269-CU-
        v.                                       CR-CTL)

THE SUPERIOR COURT OF SAN                       ORDER GRANTING PARTIAL
DIEGO COUNTY,                                   PUBLICATION

        Respondent;

THE CITY OF SAN DIEGO, et al.,

        Real Parties in Interest.


THE COURT:

        The opinion in this case filed December 29, 2016, was not certified for

publication. It appearing the opinion meets the standards for partial publication specified

in California Rules of Court, rule 8.1105(c), the request pursuant to rule 8.1120(a) for

publication is GRANTED in part.

        IT IS HEREBY CERTIFIED that the opinion meets the standards for partial

publication specified in California Rules of Court, rule 8.1105(c); and

*      Pursuant to California Rules of Court, rule 8.1110, this opinion is certified for
publication with the exception of part III.
       ORDERED that the words "Not to Be Published in the Official Reports" appearing

on page 1 of said opinion be deleted and the opinion herein be published in part in the

Official Reports.


                                                                    HALLER, Acting P. J.
Copies to: All parties




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