Filed 11/5/15 Alvarado v. City of Pasadena CA2/8
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT


                                                 DIVISION EIGHT


WILLIAM ALVARADO,                                                    B259669

         Plaintiff and Appellant,                                    (Los Angeles County
                                                                     Super. Ct. No. BC520072)
         v.

CITY OF PASADENA, et al.,

         Defendants and Respondents.




         APPEAL from an order of the Superior Court of Los Angeles County, Kevin C.
Brazile, Judge. Affirmed.


         Law Offices of H. Douglas Daniel and H. Douglas Daniel for Plaintiff and
Appellant.


         Michele Beal Bagneris, City Attorney, and Frank Rhemrev, Assistant City
Attorney, City of Pasadena, for Defendants and Respondents.




                                ___________________________________
       William Alvarado sued the City of Pasadena and two of its police officers, Ara
Bzdigian and Javier Aguilar (hereafter the “City”), for malicious prosecution. The City
filed a motion for summary judgment pursuant to Code of Civil Procedure section 437c,1
which the trial court granted. Alvarado appeals, contending the trial court erred when it
found no triable issues of material fact on the element of probable cause. We conclude
the trial court ruled correctly in favor of the City. Accordingly, we affirm.

                   FACTS AND PROCEDURAL BACKGROUND

A.     The Initial Investigation and Prosecution
       Back in 2001, Alvarado was suspected of committing several crimes investigated
by the Pasadena Police Department (PPD). A judge of the Los Angeles Superior Court
signed two warrants for his arrest in case Nos. GA047125 (issued August 22, 2001 --
$15,000 bail for an alleged violation of Penal Code section 459) and GA047156 (issued
August 27, 2001 -- $30,000 bail for an alleged violations of Vehicle Code section 10851
and Penal Code section 496, subdivision (a)).
       On August 30, 2001, PPD Officers Ara Bzdigian, Javier Aguilar and Corporal
Terysa A. Rojas, executed the arrest warrants at Alvarado’s residence in Monrovia where
he lived with his mother and sister. Alvarado was arrested. Alvarado claims Officers
Bzdigian and Aguilar entered the home without consent, searched the common area, and
found methamphetamine and a handgun.
       PPD’s discovery of the handgun and methamphetamine led to the filing of an
additional case, No. GA047235, alleging violations of Health and Safety Code sections
11351 and 11378, and Penal Code section 12021, subdivision (d).
       On September 18, 2001, Alvarado settled all three of his criminal cases. In
exchange for a change of plea to two counts and one enhancement (burglary in
GA047125; drug and gang allegation in GA047235), he was given a concurrent



1      All further undesignated references are to the Code of Civil Procedure.


                                             2
probationary sentence of three years formal probation and 270 days in the county jail.
The remaining case (GA047156) and counts (in case GA047235) were dismissed.


B.     Deportation and Motion to Vacate Plea
       Subsequent to his jail term, Alvarado was detained by U.S. Immigration and
Customs Enforcement and deported to Guatemala. In 2006, he returned to the United
States and was deported again. When Alvarado came back again in 2009, to undo the
cause of his past deportations, he hired an attorney and filed a motion to vacate his pleas
in case Nos. GA047235 and GA047125. On March 22, 2012, a judge of the Los Angeles
Superior Court granted the motions and vacated the pleas. At that time, the criminal
complaints were reinstated. On December 11, 2012, the Los Angeles County District
Attorney’s Office announced that they were unable to proceed and Alvarado’s criminal
cases were dismissed.2


C.     Filing the Malicious Prosecution Complaint
       On August 30, 2013, Alvarado filed a complaint in Los Angeles County Superior
Court alleging violations of his civil rights under Title 42 United States Code
section 1983.3 He sued the City listing causes of action for (1) Conspiracy to Violate


2      The declaration of Susan Steinfeld, Assistant Head Deputy of the Pasadena Branch
Office for the Los Angeles County District Attorney’s Office indicates the evidence
necessary to successfully prosecute Alvarado had been destroyed due to the passage of
time.

3      Title 42 United States Code section 1983 states, “Every person who, under color
of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the
District of Columbia, subjects, or causes to be subjected, any citizen of the United States
or other person within the jurisdiction thereof to the deprivation of any rights, privileges,
or immunities secured by the Constitution and laws, shall be liable to the party injured in
an action at law, suit in equity, or other proper proceeding for redress, except that in any
action brought against a judicial officer for an act or omission taken in such officer’s
judicial capacity, injunctive relief shall not be granted unless a declaratory decree was
violated or declaratory relief was unavailable. For the purposes of this section, any Act

                                              3
Civil Rights through False Imprisonment; (2) Malicious Prosecution; (3) Unlawful
Search and Seizure; and (4) Intentional Infliction of Emotional Distress. Although the
record is unclear, both parties agree only the cause of action for malicious prosecution
proceeded.4
       The City filed a motion for summary judgment. Alvarado filed an opposition.
Considering the three elements required to prove malicious prosecution, the trial court
found material factual disputes on favorable termination and malice. However, it found
no dispute of material facts on the element of probable cause and granted the motion. In
reaching this conclusion, the trial court stated:


       “The Court finds there is no triable issue of material fact as to whether [the City]
       had probable cause to search [Alvarado’s] residence. [Alvarado] was on formal
       probation, there was a warrant for his arrest, and he was subject to search terms.
       The Parties do not dispute these facts. A search of the surrounding area incident to
       the arrest for safety reasons is justified in any arrest, which is essentially what
       [Alvarado] argues. However, the nuance in this case is that [Alvarado] was on
       formal probation and was subject to warrantless searches at any time. [The City]
       had probable cause to conduct the search of the living room and kitchen that
       resulted in the discovery of the drugs and gun. . . .”

       Alvarado filed a timely notice of appeal.


                                       DISCUSSION
I.     Law on Summary Judgment Motion
       A defendant moving for summary judgment must show that one or more elements
of a cause of action cannot be established or that there is a complete defense to the cause
of action. (§ 437c, subd. (p)(2); Miller v. Department of Corrections (2005) 36 Cal.4th


of Congress applicable exclusively to the District of Columbia shall be considered to be a
statute of the District of Columbia.

4       Alvarado claims he abandoned the other three causes of action. The City claims
the trial court sustained a demurrer as to all causes of action except for malicious
prosecution. Clarity on this point is not necessary to resolve this appeal.

                                               4
446, 460.) Once the defendant’s burden has been met, the plaintiff is required to show a
triable issue of material fact as to the cause of action or defense. (§ 437c, subd. (p)(2).)
A triable issue of fact is created when the evidence reasonably permits the trier of fact,
under the applicable standard of proof, to find the purportedly contested fact in favor of
the party opposing the motion. (Lugtu v. California Highway Patrol (2001) 26 Cal.4th
703, 722.) The plaintiff may not rely on the allegations in his pleadings but must set
forth the specific facts showing the triable issue. (§ 437c, subd. (p)(2).)
       We review the record de novo, considering all the evidence set forth in the moving
and opposing papers except that to which objections were made and sustained. We
liberally construe the evidence in support of the plaintiff opposing summary judgment
and resolve doubts concerning the evidence in his favor. (§ 437c, subd. (c); Yanowitz v.
L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037; AARTS Productions, Inc. v. Crocker
National Bank (1986) 179 Cal.App.3d 1061, 1064-1065.)


II.    Malicious Prosecution
       “To prevail on a malicious prosecution claim, the plaintiff must show that the prior
action (1) was commenced by or at the direction of the defendant and was pursued to a
legal termination favorable to the plaintiff; (2) was brought without probable cause; and
(3) was initiated with malice. [Citation.]” (Soukup v. Law Offices of Herbert Hafif
(2006) 39 Cal.4th 260, 292.) The elements are the same when the alleged malicious
prosecution is based on a prior criminal proceeding. (Centers v. Dollar Markets (1950)
99 Cal.App.2d 534, 540.)
       The parties limit the scope of this appeal to whether the trial court erred when it
found no material dispute existed on the question of probable cause. Specifically,
Alvarado argues “[t]he trial court erred in granting summary judgment as to Alvarado’s
malicious prosecution cause of action by finding that probable cause existed to prosecute
Alvarado for the drug charge when they blatantly committed an unlawful search of his
premises in violation of his Fourth Amendment constitutional rights.” As such, we
narrow our review only to the issues raised on appeal.

                                              5
       A.     Lack of Probable Cause
       The validity of an arrest may be challenged on constitutional grounds, and, if such
an arrest is determined to be unconstitutional, it may give rise to a claim under Title 42
United States Code section 1983. (Bretz v. Kelman (1985) 773 F.2d 1026, 1030-1031
(Bretz) [“An incorrect arrest does not provide grounds for a claim of deprivation of
liberty without due process if the arrest was made pursuant to a valid warrant based upon
probable cause. [Citation.] While innocence (or, as in the present case, acquittal after
trial) may be relevant to a tort claim for false imprisonment, it is largely irrelevant to a
claim of deprivation of liberty without due process of the law. [Citation.] Nevertheless,
if an arrest is made in bad faith, there may be a cause of action under § 1983 as an illegal,
unconstitutional arrest. [Citations.]”)
       The Bretz Court explained, “[w]e have held that malicious prosecution generally
does not constitute a deprivation of liberty without due process of law and is not a federal
constitutional tort if process is available within the state judicial systems to remedy such
wrongs. [Citation.] But, we have also held that an exception exists to the general rule
when a malicious prosecution is conducted with the intent to deprive a person of equal
protection of the laws or is otherwise intended to subject a person to a denial of
constitutional rights.” (Bretz, supra, 773 F.2d at p. 1031.)
       Thus rather than answering the question of probable cause for Alvarado’s alleged
criminal conduct listed in the police report, i.e., whether he illegally possessed a handgun
and methamphetamine, we instead assess whether Alvarado’s arrest was constitutionally
valid. This turns on the nature and scope of the search and any exceptions that may apply
under the Fourth Amendment search and seizure jurisprudence.


              (1)     The Parties Contentions
       The parties do not dispute officers Rojas and Aguilar searched the dresser drawer
in the living room within Alvarado’s residence where the handgun and methamphetamine



                                               6
were located. The police report indicates Alvarado had already been detained when the
search was conducted.
       The City argues Alvarado was on probation subject to search conditions at the
time of the search on August 30, 2001. Alvarado contends the City presented no
evidence he was subject to search conditions. Alvarado additionally argues the trial court
erred in holding the evidence was “undisputed” he was subject to search conditions.
Switching gears to address the doctrine of “search incident to an arrest,” Alvarado argues
the trial court erred in holding the warrantless search was justified because of safety
concerns. Alvarado further contends the search was unrelated to the arrest warrant for
burglary and was thus unreasonable and unconstitutional. He next argues, even if
probable cause is found, it was “vitiated by [the City’s] unreasonable and bad-faith
conduct at the time of and subsequent to Alvarado’s arrest.” Lastly, Alvarado claims a
“controversy as to what facts were known to the malicious prosecution defendant at the
time the action was initiated or prosecuted presents a question of fact for the trier of fact.”


              (2)    Analysis
       “A residence search conducted without a warrant is presumed unreasonable unless
it comes within an exception to the warrant requirement. [Citation.] One such exception
is the consent to search. [Citations.] In California, probationers consent in advance, as a
condition of their probation, to warrantless searches and seizures in exchange for the
opportunity to avoid serving a state prison term. [Citations.] Warrantless searches of
probationers are justified because they aid in deterring further offenses by the probationer
and in monitoring compliance with the terms of probation. [Citations.] ‘By allowing
close supervision of probationers, probation search conditions serve to promote
rehabilitation and reduce recidivism while helping to protect the community from
potential harm by probationers. [Citation.]’ [Citation.]” (People v. Medina (2007)
158 Cal.App.4th 1571, 1575-1576 (Medina).)
       It is well settled that a defendant has a right to refuse probation. (In re Osslo
(1958) 51 Cal.2d 371, 377.) Furthermore, as explained in Medina, a probationer’s

                                              7
consent to a search condition is a complete waiver of his or her Fourth Amendment
rights. (Medina, supra, 158 Cal.App.4th at p. 1576.) Thus, if the City’s evidence
established Alvarado accepted the grant of probation and search conditions, they
established Alvarado waived his Fourth Amendment rights and consented in advance to
warrantless searches.
       The City relies on the testimony given by [former] Corporal Rojas.5 Rojas
testified at a deposition for the underlying case that she knew Alvarado from her time as a
gang officer. She stated, “I know him from when I was a gang officer. I had made
contact with him several times. In addition, after that, he became an informant on several
different cases.” She continued, “We’ve kept in contact. Basically, he will call me if he
needs something. He called me when he was deported. I had contact with him in a
federal institution in -- I think it was east of Phoenix, when my homicide partner and I
went out to question him regarding a homicide. He wasn’t involved in that, it was just
his gang were suspects in that homicide.”
       Rojas went on to testify, “I recall I was a corporal . . . and two of the officers that
worked the gang unit . . . Bzdigian . . . and . . . Aguilar, came to me and stated that they
wanted to go and check if William Alvarado was home. He was on probation with search
and seizure, and I believe he also had an arrest warrant. [¶] And they came to me
because any time we would go to a home where we’re gonna do a probation search, they
have to check to make sure he has search and seizure conditions, the warrant is still in the
system, so we don’t go there unlawfully. So that was all checked out. I made sure that –
that was part of my duties to make sure those things are done prior to going to a
location.”
       The record on appeal does not show any objections to this evidence. Indeed,
evidentiary objections must be made in writing before the summary judgment hearing or
orally at the hearing in order to preserve the issue on appeal. (Reid v. Google, Inc. (2010)
50 Cal.4th 512, 530.) Alvarado complains on appeal Rojas’s testimony is “speculative,

5      The deposition for Rojas took place on April 28, 2014. When the deposition was
taken, Corporal Rojas had been promoted to lieutenant.

                                               8
not based on personal knowledge, is vague[.]” These, however, are evidentiary
objections that needed to be made at the summary judgment hearing. If not made, they
are deemed waived. (§ 437c, subd. (b)(5).)
       The City’s evidence shows Rojas previously worked the gang detail, knew
Alvarado personally as a gang member, had multiple contacts with him, and knew he had
been an informant on several investigations. From this, she testified Alvarado was on
probation with search conditions. While she did not testify as to the exact wording of the
search condition, none is necessary. The only reasonable inference based on her
testimony (“any time we would go to a home where we’re gonna do a probation search”)
is that the officers checked to make sure the search conditions included the search of his
residence.
       Alvarado contends the extent of Rojas’s knowledge is a factual dispute for the trier
of fact. We do not agree. Alvarado had an opportunity to rebut Rojas’s testimony but
chose not to challenge it. (§ 437c, subd. (p)(2).) He was in the best position to counter
her testimony and present contrary evidence. As it is, Rojas’s testimony is established
without any evidence to rebut it. We hold the City presented evidence Alvarado was on
probation subject to search conditions that included his home and that this evidence is
undisputed.
       We address Alvarado’s remaining contentions. Next, Alvarado contends the
search was unreasonable and unconstitutional because it was not related to the arrest
warrant for burglary. This contention is without merit.
       In California, search conditions accepted by the probationer who has a right to
refuse probation are considered consent to search. (People v. Bravo (1987) 43 Cal.3d
600, 607.) “Accordingly, the California Supreme Court has held that a search of a
probationer pursuant to a search condition may be conducted without any reasonable
suspicion of criminal activity and that such a search does not violate the Fourth
Amendment. [Citation.]” (Medina, supra, 158 Cal.App.4th at p. 1577.) The City’s
search required no connection to the arrest for burglary.



                                             9
       We need not address Alvarado’s contention regarding the permissible scope of a
search conducted incident to an arrest as Alvarado’s consent to search pursuant to a
probation search resolves the constitutionality of the search.
       Alvarado’s remaining contention relates to the “fruit of the poisonous tree”
doctrine. He contends, “[a]ssuming, arguendo, that [the City] did have probable cause,
said probable cause was vitiated by [the City’s] unreasonable and bad-faith conduct at the
time of and subsequent to Alvarado’s arrest[.]” Alvarado’s request is legally untenable.
       The purpose of the “fruit of the poisonous tree doctrine” is to exclude derivative
evidence obtained from an initial illegal search. (People v. Werner (2012)
207 Cal.App.4th 1195, 1213.) If law enforcement conducts an illegal search and obtains
incriminatory information, the use of that illegally obtained information affects the
downward chain of all other evidence obtained from that source. For example, if a police
officer uses the illegally obtained information and seeks a search warrant, the subsequent
search and any evidence obtained in the secondary search may be subject to exclusion
under the fruit of the poisonous tree doctrine.
       The policy for the exclusionary rule is to deter police misconduct. (United States
v. Leon (1984) 468 U.S. 897, 909.) It is a judicially created rule, where once the trial
court determines police misconduct has occurred, the court excludes the evidence
obtained from the misconduct to prevent similar misconduct in the future.
       In California, criminal defendants may statutorily move to suppress evidence
obtained from an alleged violation of their Fourth Amendment rights under Penal Code,
section 1538.5.6 In a suppression motion, the defendant has the burden of raising the

6      Penal Code section 1538.5 states in pertinent part:
       (a)(1) A defendant may move for the return of property or to suppress as evidence
       any tangible or intangible thing obtained as a result of a search or seizure on either
       of the following grounds:
       (A) The search or seizure without a warrant was unreasonable.
       (B) The search or seizure with a warrant was unreasonable because any of the
       following apply:
       (i) The warrant is insufficient on its face.
       (ii) The property or evidence obtained is not that described in the warrant.

                                             10
constitutional violation. Once done, the burden shifts to the prosecution to prove the
search was reasonable under the circumstances. (People v. Williams (1999) 20 Cal.4th
119, 130.) In such a hearing, the court is specifically called upon, using a preponderance
of the evidence standard, to determine whether a constitutional violation occurred. If a
violation is found, the trial court may apply the exclusionary rule to suppress evidence,
including evidence tainted as a fruit of the poisonous tree. (Wong Sun v. United States
(1963) 371 U.S. 471, 484-485.)
       This rule and its policy has no application in a summary judgment motion. The
role of the trial court, in assessing whether a summary judgment should be granted, has
nothing to do with deciding whether to suppress evidence because of a violation of the
plaintiff’s Fourth Amendment rights. In a summary judgment motion, the trial court does
not adjudicate whether police misconduct actually happened. Instead, “[t]he purpose of
the law of summary judgment is to provide courts with a mechanism to cut through the
parties’ pleadings in order to determine whether, despite their allegations, trial is in fact
necessary to resolve their dispute. [Citation.]” (Aguilar v. Atlantic Richfield Co. (2001)
25 Cal.4th 826, 843.) The court does not punish anyone when it grants a summary
judgment motion. Instead, we decide whether based on the parties’ evidence, the case
should proceed to trial. We therefore decline Alvarado’s argument to apply the fruit of
the poisonous tree doctrine and its underlying policy in the summary judgment context.
       Having analyzed all of Alvarado’s contentions, we hold, as did the trial court, that
no triable issues of material fact exist on the element of probable cause.




       (iii) There was not probable cause for the issuance of the warrant.
       (iv) The method of execution of the warrant violated federal or state constitutional
       standards.
       (v) There was any other violation of federal or state constitutional standards.


                                              11
                                    DISPOSITION
      The trial court’s order granting the summary judgment motion pursuant to section
437c is affirmed. Respondents shall recover their costs on appeal.




                                                OHTA, J.*
WE CONCUR:




             BIGELOW, P.J.




             GRIMES, J.




*
        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

                                           12
