Filed 1/20/16 White v. City of Torrance CA2/3
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 THREE


MICHAEL I. WHITE,                                                        B257814

         Plaintiff and Appellant,                                        (Los Angeles County
                                                                         Super. Ct. No. BC523616)
         v.

CITY OF TORRANCE,

         Defendant and Respondent.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
Barbara Meiers, Judge. Affirmed.
         Michael I. White, in pro. per., for Plaintiff and Appellant.
         John L. Fellows III, City Attorney, Patrick Q. Sullivan, Assistant City Attorney,
and Della Thompson-Bell, Deputy City Attorney, for Defendant and Respondent.
                                ___________________________________
                                      INTRODUCTION
        Based on allegations that police officers mistreated him, plaintiff and appellant
Michael I. White sued defendant and respondent City of Torrance (Torrance) for, among
other things, assault and battery and false arrest. Torrance moved for summary judgment,
citing White’s admissions his allegations were incorrect. The trial court granted
Torrance’s unopposed motion. White appeals. We affirm the judgment.
                  FACTUAL AND PROCEDURAL BACKGROUND
I.      Factual background.
        On November 1, 2012, the Torrance Police Department received a call about
a suspicious person in a white Ford minivan. The person, a Black male adult, had been
parked for over an hour and was watching vehicles and people come and go. The caller
believed the person was “casing for auto burgs.” In response, police officers Ryan
Peterson and Joanna Warren went to the parking lot of the 24 Hour Fitness on Pacific
Coast Highway. They saw White, who matched the description of the suspect. After
White failed to heed a stop sign when exiting the parking lot and failed to signal before
turning, the officers stopped him. On exiting his patrol car, Officer Peterson turned on
his digital audio recording device.
        Officer Peterson asked White to step out of the car, which White did. White said
he had just bought rice from Whole Foods. When Officer Peterson told White about the
call the police department received, White said he had done nothing wrong. Officer
Peterson asked if White had anything in the minivan the officer should know about.
White said he had knives for safety because he slept in his van, as he was homeless. The
officer removed a knife from White’s pocket. Although White had already given the
officers his wallet, Officer Peterson felt a second wallet on White while patting him
down.
        Officer Peterson told White that as soon as White’s license was validated, he could
be on his way. Because Officer Warren noticed that White had a “guard card,” she asked
if White had guns in the van. White said he had BB guns, a nine millimeter gun, and

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ammunition in the van. Officer Peterson asked if he could see the gun and make sure it
was stored legally.
       Officer Peterson told White he was free to go.
       The encounter lasted approximately 28 minutes.
II.    Procedural background.
       On October 7, 2013, White filed a complaint against Torrance for (1) assault and
battery; (2) false arrest; (3) malicious prosecution; (4) intentional infliction of emotional
distress; (5) negligent hiring, supervision and retention of employees; and
(6) constructive eviction of premises. White alleged that defendants choked him, sprayed
him with mace, and “aggressively harassed, annoyed and belittled” him for sitting in his
car. Handcuffed, White spent “several hours in a Cop Car for nothing.” Although White
alleged he did not go to jail, he also alleged he was “arrested without warrant and officers
took Plaintiff into custody for no felony-Criminal crime other than to sit in his car.” He
was “prosecuted in a criminal proceeding over nothing,” and “he spent one year fighting
the criminal charges.” White reported the incident to the Torrance Police Department.
The officers, however, “lied on the report” by saying that White threatened to hurt them.
       Torrance moved for summary judgment. In support of the motion, Torrance
submitted the call detail report confirming that the police department received a call
regarding a suspicious person in a vehicle. Torrance also submitted a written transcript
of the audiotape from the encounter between White and the police officers. That
transcript belied the allegations in the complaint and showed that after the officers
questioned White and checked his identification, White left, without being handcuffed,
placed in the police car or arrested. Torrance also relied on White’s admissions at his
deposition and in a letter that the allegations in his complaint were false. In his letter, for
example, White said, regarding “the lawsuit . . . [a]ll those accusations I didn’t say that.
My paralegal . . . said or add all that. . . . What was in the file I said none of that. I gave
him papers on what had happen and it wasn’t what was in file. So the mishap is on the



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paralegal. I’ve told him to change it but it’s been discords [sic]. So I Michael White
never said that.”
       White did not oppose the motion or appear at the June 25, 2014 hearing on it.
Noting the absence of an opposition and finding no triable issues of material fact, the trial
court granted the motion for summary judgment.
       Two days after the hearing, on June 27, 2014, White filed an opposition. He then
filed a motion for reconsideration on July 10, 2014, which the trial court denied.
Judgment was entered on August 18, 2014.
       White appeals the grant of summary judgment.1
                                        DISCUSSION
I.     The standard of review from a grant of summary judgment.
       “We review a grant of summary judgment de novo. [Citation.] We assume the
role of the trial court and redetermine the merits of the motion.” (Calemine v. Samuelson
(2009) 171 Cal.App.4th 153, 160-161.) Summary judgment is properly granted if the
“affidavits, declarations, admissions, answers to interrogatories, depositions, and matters
of which judicial notice shall or may be taken” in support of and in opposition to the
motion “show that there is no triable issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c,
subds. (b)(1) & (c).) A defendant moving for summary judgment must show that one or
more elements of the plaintiff’s cause of action cannot be established or that there is
a complete defense. (Id., subd. (p)(2).) If the defendant meets this burden, the burden
shifts to the plaintiff to present evidence creating a triable issue of material fact. (Ibid.;
see also Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) Failure to file an
opposing separate statement may, in the trial court’s discretion, constitute sufficient


1
       It is unclear whether White intended to appeal the order denying his motion for
reconsideration. To the extent he did, White failed to show what new or different facts,
circumstances or law entitled him to reconsideration. (Code Civ. Proc., § 1008,
subd. (a).)

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ground to grant the motion. (Code Civ. Proc., § 437c, subd. (b)(3).) But a court cannot
grant summary judgment based only on the lack of opposition papers; the moving party
still must meet its initial burden of proof. (Thatcher v. Lucky Stores, Inc. (2000)
79 Cal.App.4th 1081, 1085-1087.)
II.    Torrance met its burden of showing there were no triable issues of material
fact as to any of White’s causes of action.
       A.       Assault and battery.
       White premised his assault and battery cause of action on allegations the officers
“choked and sprayed” him with mace. Torrance met its burden of showing that there was
no triable issue of material fact as to this cause of action, because an assault and battery
simply did not occur. Rather, the audiotape of the incident shows that White was neither
choked nor sprayed with mace. White conceded at his deposition that he was not
assaulted:
       “Q. . . . Did the male officer ever choke you at any time?
       “A. No.
       [¶] . . . [¶]
       “Q. Did the female officer ever choke you at any time?
       “A. No.
       “Q. Did the male officer ever mace or pepper spray you?
       “A. No.
       “Q. Did the female officer ever mace or pepper spray you?
       “A. No.”
       Where, as here, there is a clear and unequivocal admission by the plaintiff that the
alleged assault did not occur, “we are forced to conclude there is no substantial evidence
of the existence of a triable issue of fact.” (King v. Andersen (1966) 242 Cal.App.2d 606,
610; see also D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21-22.)




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       B.       False arrest.
       White alleged he was arrested and “spent hours” handcuffed in the police car. The
elements of false arrest are (1) defendant arrested plaintiff without a warrant, (2) plaintiff
was actually harmed, and (3) defendant’s conduct was a substantial factor in causing
plaintiff’s harm. (CACI No. 1401; see also City of Newport Beach v. Sasse (1970)
9 Cal.App.3d 803, 810.) Torrance’s undisputed evidence showed that White was not
arrested or handcuffed. Instead, after about 28 minutes, White left, without being
handcuffed, placed in the police car or arrested. At his deposition, White denied ever
saying that he was arrested or handcuffed:
       “Q. . . . And you were never arrested; correct?
       “A. No. I never said I was.
       “Q. Okay. And you were never handcuffed or placed in the back of the police
car; correct?
       “A. Never said I was.
       “Q. Correct?
       “A. Right.”
       To the extent White’s cause of action is based on allegations he was unlawfully
detained, Torrance similarly met any burden of showing no triable issue of material fact.
A detention is reasonable under the Fourth Amendment when the detaining officer can
point to specific, articulable facts which, considered in light of the totality of the
circumstances, provide an objective manifestation that the person detained may be
involved in criminal activity. (Terry v. Ohio (1968) 392 U.S. 1, 19; People v. Souza
(1994) 9 Cal.4th 224, 231.) Here, the police department received a call about a
suspicious person in a white Ford minivan. Responding to the call, the officers saw
White, who matched the caller’s description. The officers then saw White make traffic
violations, after which the officers stopped him. These facts provided an objectively
reasonable basis to detain White. (See generally People v. Brown (2015) 61 Cal.4th 968.)



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       C.     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; see also Centers v. Dollar Markets (1950) 99 Cal.App.2d
534, 540.) Here, Torrance’s undisputed evidence established that “no prior action” was
commenced against White; specifically, White admitted that criminal charges relating to
the encounter were never filed against him.
       D.     Intentional infliction of emotional distress.
       “ ‘The elements of the tort of intentional infliction of emotional distress: are
“ ‘ (1) extreme and outrageous conduct by the defendant with the intention of causing, or
reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s
suffering severe or extreme emotional distress; and (3) actual and proximate causation of
the emotional distress by the defendant’s outrageous conduct. . . . ’ ” ’ ” (Potter v.
Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1001.) Torrance’s uncontradicted
evidence established that none of the conduct alleged in the complaint occurred. That
“conduct” therefore could not form the basis for a cause of action for intentional
infliction of emotional distress.
       In any event, nothing amounting to extreme or outrageous conduct occurred
during the encounter between White and the officers. It was undisputed that the police
department received a phone call about a suspicious vehicle, and the caller thought that
the vehicle’s occupant was “casing” for auto burglaries. Officers Peterson and Warren
responded to the call and saw White, who matched the caller’s description of the suspect.
The officers stopped White after he failed to heed a stop sign and to signal before turning.
The officers questioned White for approximately 28 minutes and he was then told he was
free to go. This undisputed evidence shows that the officers did not engage in extreme
and outrageous conduct. (See generally Hughes v. Pair (2009) 46 Cal.4th 1035, 1051

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[liability for intentional infliction of emotional distress doesn’t extend to mere insults,
indignities, threats, annoyances, or petty oppressions].)
       E.        Negligent hiring, supervision and retention of employees.
       “An employer may be liable to a third person for the employer’s negligence in
hiring or retaining an employee who is incompetent or unfit.” (Roman Catholic Bishop v.
Superior Court (1996) 42 Cal.App.4th 1556, 1564.) Negligence liability will be imposed
upon the employer if it “knew or should have known that hiring the employee created
a particular risk or hazard and that particular harm materializes.” (Doe v. Capital Cities
(1996) 50 Cal.App.4th 1038, 1054.)
       White alleged that Torrance should have known that the police officers were unfit
and incompetent and that their “unfitness led to the harassment”; namely, the choking,
being sprayed with mace, the false arrest, and malicious prosecution. As we have said,
Torrance’s undisputed evidence established that the police officers did not engage in any
of the alleged conduct. White’s admissions that the officers did not engage in the
conduct alleged in the complaint is fatal to this cause of action as well.
       F.        Constructive eviction of premises.
       White alleged, “Defendants committed a series of acts designed to and did deprive
Plaintiff of the beneficial enjoyment of his civil rights by placing him in a police car for
hours without just cause, which caused Plaintiff to abandon the premises after the abusive
tactics of the Torrance Police Department.” Although these allegations are vague,
Torrance’s undisputed evidence established that White was not “constructively evicted.”
Rather, White was homeless at the time of the encounter. He admitted he was not renting
and did not have a lease. To the extent the cause of action was premised on the allegation
White was detained in the police car for hours, White admitted he was never in the police
officer’s car.




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                                    DISPOSITION
       The judgment is affirmed. Defendant and respondent City of Torrance to recover
its costs on appeal.


       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                ALDRICH, Acting P. J.
We concur:




              LAVIN, J.




              JONES, J.




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

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