Salazar v. Upland Police Department

Full title: GELZA SALAZAR, Plaintiff and Appellant, v. UPLAND POLICE DEPARTMENT et…

Court: Court of Appeals of California, Fourth District, Division Two

Date published: Mar 10, 2004

E032557/E033447 (Cal. Ct. App. Mar. 10, 2004)

Opinion

E032557/E033447

3-10-2004

GELZA SALAZAR, Plaintiff and Appellant, v. UPLAND POLICE DEPARTMENT et al., Defendants and Respondents.

Law Offices of Ruben Salazar and Ruben Salazar for Plaintiff and Appellant. Ferguson, Praet & Sherman, Shane D. Sullivan and Larry J. Roberts for Defendants and Respondents.

Gaut

This action arises from a road rage incident in which an Upland Police Department officer arrested plaintiff Gelza Salazar for felony assault with a deadly weapon, a car.¹ The district attorney ultimately filed misdemeanor charges against her for hit-and-run² and reckless driving.³ The trial court dismissed the criminal charges after plaintiff stipulated to there being probable cause for her arrest. Meanwhile plaintiff sued defendants in this action for arresting her and filing criminal charges against her.

1 Penal Code section 245, subdivision (a)(1).

2 Vehicle Code section 20002, subdivision (a).

3 Vehicle Code section 23103, subdivision (a).

Defendants City of Upland, Upland Police Department, Lieutenant Rod Lines, Police Chief Martin E. Thouvenell, officers Steven Adams, Jeff Mendenhall, and John Echevarria, police dispatcher Liz Nutte, and police dispatcher supervisor Graham Hendrickson (defendants) moved for summary judgment or, alternatively, summary adjudication on the grounds plaintiff stipulated there was probable cause for her arrest and defendants were immune from liability.

Plaintiff appeals judgment against her, entered after the trial court granted defendants summary judgment. Plaintiff raises numerous grounds challenging summary judgment, including that there was no probable cause for plaintiffs arrest; the probable cause stipulation was inadmissible and was not sufficient to support summary judgment; defendants failed to meet their burden of establishing a defense to each of the 10 causes of actions; plaintiffs claims are not barred by governmental immunity; triable issues of fact exist; and defendants summary judgment motion failed to address the seventh cause of action for civil rights violations against defendant officers Echevarria, Lines, Adams, and Thouvenell.

We conclude the probable cause stipulation is admissible and establishes there was probable cause for plaintiffs arrest. In addition, with the exception of the seventh cause of action, the trial court appropriately granted summary judgment as to each cause of action based on governmental immunity.

As to the seventh cause of action, the trial court erred in granting summary judgment since it was not addressed in defendants motion for summary judgment. As a consequence, summary judgment is reversed as to defendant officers Echevarria, Lines, Adams, and Thouvenell. Summary judgment is affirmed as to the remaining defendants, City of Upland, Upland Police Department, Jeff Mendenhall, Liz Nutte, and Graham Hendrickson.

In a separate appeal, consolidated with plaintiffs summary judgment appeal, plaintiff appeals from an order awarding defendants $20,476.50 in attorneys fees and $1,086.64 in costs. The trial court awarded fees and costs under Code of Civil Procedure section 1021.7 on the ground plaintiffs action was not maintained with reasonable cause.

Plaintiff contends the trial court did not have jurisdiction to decide defendants motion for attorneys fees and costs, and the trial court denied plaintiff her rights to due process, equal protection, and a fair hearing. Plaintiff also complains the trial court abused its discretion in granting fees and costs under Code of Civil Procedure section 1021.7, and the award is against public policy and infringes plaintiffs first amendment right to petition the government for legal redress.

We reject plaintiffs contentions as meritless and affirm the award of fees and costs as to the City of Upland, Upland Police Department, Jeff Mendenhall, Liz Nutte, and Graham Hendrickson. But since we must reverse summary judgment as to the seventh cause of action against officers Echevarria, Lines, Adams, and Thouvenell due to defendants failure to address the seventh cause of action in their summary judgment motion, we reverse the fees and cost award as to those defendants.

I. SUMMARY JUDGMENT APPEAL

A. Factual and Procedural Background

On February 28, 2001, at about 10:00 a.m., Larry Moxham rear-ended plaintiff after Moxham and plaintiff had became engaged in a brief bout of road rage. Plaintiff left the scene of the accident without giving Moxham her identifying information. Shortly thereafter, Upland Police Department Officer John Echevarria investigated the incident, took Moxhams statement, located plaintiff driving in her car, stopped her, took her statement, and based on plaintiffs and Moxhams statements, arrested plaintiff for assault with a deadly weapon, a car. Plaintiff was booked for the assault offense and, later that day, plaintiff was released on $50,000 bail.

Based on Echevarrias investigation of the incident, he wrote a declaration of probable cause in which he stated he was informed that plaintiff purposely slammed on her brakes, causing Moxhams truck to rear-end her vehicle. Echevarria further stated in the declaration that, after interviewing Moxham and plaintiff, he concluded the collision was due to plaintiff being upset because she believed Moxham had cut her off.

Rather than prosecuting plaintiff for felony assault with a deadly weapon, on March 14, 2001, the district attorney filed misdemeanor charges against plaintiff for hit-and-run and reckless driving.

On May 15, 2001, plaintiff filed a government claim with the City of Upland claiming, among other things, that defendants fabricated probable cause for her arrest, falsely arrested her based on her ethnicity and sex, attempted to cover up defendants fabrication and false arrest, inadequately investigated the incident, pursued criminal charges against her despite being apprised they were false, and committed defamation, invasion of privacy, false imprisonment, violation of her civil rights, battery, negligent hiring, training, supervision, and discipline of defendant officers, negligent handling of her 911 call, and negligent failure to investigate her police misconduct complaint. The city rejected plaintiffs claim on July 9, 2001.

Plaintiff made essentially the same allegations in her civil lawsuit filed on September 7, 2001, against defendants. Plaintiffs complaint contains the following causes of actions: (1) false arrest/imprisonment; (2) battery, arising from being hand-cuffed and arrested; (3) defamation, based on defendants accusing plaintiff of committing the felony of assault with a deadly weapon; (4) invasion of privacy (false light) by publicly disclosing that plaintiff had committed the felony of assault with a deadly weapon by slamming on her brakes and damaging anothers vehicle; (5) abuse of process; (6) intentional infliction of emotional distress; (7) civil rights violation; (8) negligence per se, consisting of falsely arresting plaintiff without probable cause in violation of Penal Code section 836, subdivision (a)(3); (9) negligent failure to perform mandatory duties under Government Code section 815.6; and (10) negligent acts and omissions under Government Code section 815.2.

In November plaintiff filed Doe amendments adding police officers Steve Adams and Jeff Mendenhall as Doe defendants.

While appearing in criminal court on November 29, 2001, with both her criminal attorney and her civil attorney (plaintiffs husband) on a Pitchess motion,⁴ plaintiff authorized a probable cause stipulation, which her criminal attorney signed on her behalf. The stipulation states plaintiff and the district attorney stipulated "5. That probable cause existed for Officer Echevarria to stop [Gelza Salazar], based on the facts that were given to him by [Gelza Salazar] and Moxham on February 28, 2001, and to arrest her on the counts as charged. [¶] 6. That Defendant, Gelza Salazar was ultimately charged with violating Vehicle Code Sections 20002(a) and 23103(a)." After the parties executed the stipulation, in accordance with the prosecutors recommendation the trial court dismissed criminal charges against plaintiff under Penal Code section 1385, in the interests of justice.

4 Pitchess v. Superior Court (1974) 11 Cal.3d 531.

In December 2001, defendants removed the civil action to the federal court and, in January 2002, on plaintiffs motion, the federal court remanded the case back to the state court on the ground the civil rights cause of action, according to plaintiff, was a state statutory claim, not a federal claim.

In February 2002, plaintiff filed Doe amendments adding police dispatchers Liz Nutte and Graham Hendrickson as Doe defendants.

On July 3, 2002, defendants filed a motion for summary judgment or, alternatively, for summary adjudication on the grounds plaintiff had stipulated there was probable cause for her arrest and defendants were immune from liability. Plaintiff opposed the motion and, following a hearing on the motion, the trial court granted defendants summary judgment based on the probable cause stipulation and governmental immunity.

B. Procedural Issues

Plaintiff asserts the trial court made a number of procedural errors that constitute reversible error.

1. Written Statement of Reasons for Granting Summary Judgment

Plaintiff contends the order granting defendants summary judgment motion should be reversed because the trial court failed to provide a statement of reasons in accordance with Code of Civil Procedure section 437c, subdivision (g).⁵ Section 437c, subdivision (g) "requires the trial court, by written or oral order, to `specify the reasons for its determination in granting a motion for summary judgment, with specific reference to the applicable supporting and opposing evidence. . . . A statement of reasons is sufficient if it allows for meaningful appellate review. [Citations omitted.]"⁶

5 Unless otherwise noted, all statutory references are to the Code of Civil Procedure.

6 Santa Barbara Pistachio Ranch v. Chowchilla Water Dist. (2001) 88 Cal.App.4th 439, 448; section 437c, subdivision (g).

Failure to provide a sufficient statement of reasons is not automatic grounds for reversal since "`"[i]t is the validity of the ruling which is reviewable and not the reasons therefor. [Citation.]" [Citations.] `The lack of a statement of reasons presents no harm where . . . our independent review establishes the validity of the judgment. [Citations.]"⁷ If there is such error, the harmless error standard applies,⁸ not reversible error per se, as plaintiff argues, relying on In re Catherine S. ⁹ Catherine S. does not support such a proposition.

7 Santa Barbara Pistachio Ranch v. Chowchilla Water Dist., supra, 88 Cal.App.4th at pages 448-449.

8 Santa Barbara Pistachio Ranch v. Chowchilla Water Dist., supra, 88 Cal.App.4th at page 449; Conley v. Matthes (1997) 56 Cal.App.4th 1453, 1459-1460.

9 In re Catherine S. (1991) 230 Cal.App.3d 1253, 1258.

In the instant case, the trial court adequately stated its reasons for granting summary judgment and indicated the evidence relied upon. The trial court thus sufficiently complied with the requirements of section 437c, subdivision (g). For purposes of meaningful appellate review, a key objective of subdivision (g) of section 437c, the courts statement of reasons is quite adequate. There is no question as to the reason this motion for summary judgment was granted or the evidence relied upon in doing so.¹⁰

10 W. F. Hayward Co. v. Transamerica Ins. Co. (1993) 16 Cal.App.4th 1101, 1110-1111.

2. Summary Judgment Continuance

Plaintiff complains the trial court erred in not continuing the summary judgment motion hearing to enable her to conduct further discovery. Plaintiff requested a continuance to conduct discovery establishing that the prosecutors dismissal offer in return for a probable cause stipulation was a ruse designed to bar plaintiffs civil action. Defendants assert that this does not render the probable cause stipulation invalid. Therefore further discovery and a continuance were unnecessary.

"If it appears from the affidavits submitted in opposition to a motion for summary judgment . . . that facts essential to justify opposition may exist but cannot, for reasons stated, then be presented, the court shall deny the motion, or order a continuance to permit affidavits to be obtained or discovery to be had . . . ."¹¹ If that showing is made, the trial court must deny the motion or continue the hearing, and the failure to do so is reversible error.¹² If the requisite showing is lacking, then the trial courts ruling on the request for continuance is reviewed for an abuse of discretion.¹³

11 Section 437c, subdivision (h).

12 Nazar v. Rodeffer (1986) 184 Cal.App.3d 546, 556-567, abrogated on another point in Ornelas v. Randolph (1993) 4 Cal.4th 1095, 1103.

13 Scott v. CIBA Vision Corp. (1995) 38 Cal.App.4th 307, 313-314, 324-326.

Here, the trial court did not abuse its discretion by denying a continuance of the summary judgment motion. Plaintiff had sufficient time to investigate the matter, conduct discovery, and oppose the motion. The incident occurred on February 28, 2001. Plaintiff filed her government tort claim on May 15, 2001, and her civil lawsuit on September 7, 2001. On November 29, 2001, plaintiff, through her attorney, agreed to the probable cause stipulation and the criminal court dismissed the criminal charges against plaintiff. On July 3, 2002, defendants filed and served their summary judgment motion.

On July 22, 2002, Mr. Salazar, acting as plaintiffs attorney, filed a declaration opposing summary judgment and requesting a continuance of the motion hearing on the ground plaintiff needed to conduct additional discovery on the issue of whether the probable cause stipulation was a collusive, illegal ruse to preclude plaintiff from filing her civil action. Mr. Salazar made no mention of his continuance request during the motion hearing on August 5, 2002, and there was no ruling on the request, other than impliedly by virtue of the fact the court granted summary judgment.

Plaintiff complains that when the summary judgment motion was filed, further discovery was necessary. Her attorney, Mr. Salazar, informed the court at the case management conference on June 28, 2002, that he needed to take the depositions of three prosecutors and nine of the defendants, including the police dispatchers, the arresting officer, and those on up the chain of command.

Mr. Salazar also claimed he needed to serve interrogatories, production requests and admissions requests on the issue of probable cause, and file motions to compel the prosecutors depositions and a Pitchess motion for discovery of Echevarrias personnel file. Mr. Salazar also intended to designate a police misconduct expert to provide opinion on probable cause. In addition, two of the Doe defendants had just answered the complaint on July 2, 2002.

Mr. Salazar argued the discovery was necessary because it was directed to the issue of whether the Peoples dismissal offer was truly in the interest of justice or collusively devised to bar plaintiffs civil action.

Mr. Salazars declaration requesting a continuance fails to state any facts critical to opposing summary judgment that might exist but could not be presented. Although Mr. Salazar listed numerous items of discovery that had not yet been completed, none of the discovery would have made any difference in ruling on the applicability of governmental immunity or the finding of probable cause. There was nothing indicating further discovery would have resulted in evidence invalidating the probable cause stipulation and defeating summary judgment. The court thus did not abuse its discretion in concluding a continuance would serve no purpose other than cause unnecessary delay.

Accordingly, plaintiffs inability to complete all of her intended discovery prior to the scheduled summary judgment motion hearing did not require, much less justify, a continuance of that hearing. The trial court did not err by declining to continue the hearing.

3. Judicial Bias

Plaintiff complains the trial court displayed bias against her by excluding her proffered evidence and admitting defendants evidence, which should have been excluded.

First, plaintiff complains the court excluded her telephone bill showing she made two 911 calls at the scene of accident. Plaintiff claims this evidence showed the police dispatcher negligently placed her 911 calls on hold and there was no probable cause to arrest her because she attempted to report the incident first. But plaintiff stipulated to probable cause and, as discussed below, immunity applies to the placing of plaintiffs 911 calls on hold. We thus find no abuse of discretion in excluding this evidence, and, even if there was error, it was harmless and does not establish improper bias.¹⁴

14 People v. Watson (1956) 46 Cal.2d 818, 836.

Second, plaintiff argues the trial court was biased against her because it admitted into evidence the probable cause stipulation in her criminal proceeding but then inconsistently erroneously excluded Moxhams mothers application for a domestic violence temporary restraining order (TRO) against Moxham, filed October 28, 1982. The TRO was imposed due to Moxhams violent behavior directed toward his mother.

There was no abuse of discretion here or showing of bias. Plaintiff is mixing apples and oranges. She refers to two entirely different types of evidence. The TRO application contained highly prejudicial, inadmissible character and hearsay evidence, and involved an unrelated incident that occurred almost 20 years before the subject incident. There was no abuse of discretion in excluding the document. On the other hand the probable cause stipulation was directly relevant evidence containing an admission by plaintiff relating to the claims raised in the instant action. We further note the trial courts written statement of decision states the court took judicial notice of the TRO application and supporting declaration, although it did not judicially notice the truth of facts contained in the documents.

Third, plaintiff complains the trial court displayed bias against her by excluding police-generated reports and records, such as the incident activity summary, arrest report, probable cause declaration, arrest/booking application, and Upland Police Department "face sheet" and progress report. Defendants objected to admission of the documents on the grounds they contained hearsay and lacked foundation. Plaintiff argues these documents were admissible under the business records hearsay exception, Evidence Code section 1271, and were relevant in establishing there was no probable cause to arrest plaintiff.

Plaintiff did not lay a proper foundation for admission of the police-generated reports and records under Evidence Code section 1271. Furthermore, several of the documents contain double hearsay which is not subject to any exception and thus is inadmissible.¹⁵ Finally, even if the trial court abused its discretion in excluding the evidence, it was harmless since plaintiff admitted in the probable cause stipulation that probable cause existed.

15 Rupf v. Yan (2000) 85 Cal.App.4th 411, 430, footnote 6.

Fourth, plaintiff argues the court was biased against her because it inconsistently excluded her letter to the district attorney on relevancy grounds, while admitting Police Chief Thouvenells letter advising plaintiff that he had investigated her complaint against Echevarria and concluded her allegations were unfounded.

The court did not abuse its discretion in excluding plaintiffs letter to the district attorney on relevancy grounds. The letter was from Mr. Salazar, as plaintiffs attorney, and essentially states plaintiffs claims and the evidence that he contends establishes liability. Plaintiffs letter contains hearsay, is argumentative, and is irrelevant to the summary judgment motion. Its admission would not have served any purpose; it would not have changed the outcome of the motion.

Police Chief Thouvenells letter, on the other hand, was attached to plaintiffs declaration in support of her opposition. Defendants, rather than plaintiff, objected to the document. The trial court ruled in plaintiffs favor, overruling defendants objection to the document. This by no means shows any bias against plaintiff.

4. Premature Motion

Plaintiff claims defendants motion was premature because it was heard less than 60 days after the general appearance in the action of each defendant. Two defendants, police dispatchers Elizabeth Nutte and Graham Hendrickson, were added as Doe defendants on May 2, 2002. They filed answers to the complaint on July 3, 2002, the same day they and the other defendants filed their summary judgment motion.

Section 437c, subdivision (a) provides in relevant part: "Any party may move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding. The motion may be made at any time after 60 days have elapsed since the general appearance in the action or proceeding of each party against whom the motion is directed or at any earlier time after the general appearance that the court, with or without notice and upon good cause shown, may direct." (Italics added.)

Here, the summary judgment is directed against plaintiff. Plaintiff appeared in the action by filing her complaint on September 7, 2001. Defendants filed their summary judgment motion on July 3, 2002, approximately 10 months after plaintiff filed her complaint. Defendants motion was not premature.

5. Format of Separate Statement of Material Facts

Plaintiff argues defendants separate statement of material facts is not in compliance with section 437c, subdivision (b).

Section 437c, subdivision (b) provides: "The motion shall be supported by affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken. The supporting papers shall include a separate statement setting forth plainly and concisely all material facts which the moving party contends are undisputed. Each of the material facts stated shall be followed by a reference to the supporting evidence. The failure to comply with this requirement of a separate statement may in the courts discretion constitute a sufficient ground for denial of the motion."

Here, defendants filed with their summary judgment motion a proper separate statement of uncontroverted facts and conclusions of law. The statement listed various facts and cited evidence in support of each fact.

Plaintiff nevertheless complains the evidence cited in the statement consisted only of the probable cause stipulation and therefore the statement was not a proper statement of facts. This argument is nonsensical. Defendants cited evidence in their statement of facts in compliance with subdivision (b) of section 437c. Whether such evidence is sufficient to support summary judgment is immaterial to whether the separate statement is in compliance with subdivision (b) of section 437c. Defendants separate statement of facts is in compliance with subdivision (b) of section 437c. Plaintiffs contention is meritless.

C. Meeting Summary Judgment Burden of Proof

Plaintiff contends defendants failed to meet their initial burden of showing that each of plaintiffs 10 causes of action has no merit or that there is a complete defense.

1. Summary Judgment Standard of Review

On appeal from a summary judgment entered in favor of the defendant, we review the trial courts decision de novo, applying the rule that a defendant is entitled to summary judgment if the record establishes as a matter of law that either none of the plaintiffs asserted causes of action can prevail or the plaintiff cannot establish one or more elements.¹⁶

16 Miscione v. Barton Development Co. (1997) 52 Cal.App.4th 1320, 1324-1325; Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853; section 437c, subdivision (o)(2).

"The first step of the review begins with an analysis of the pleadings, because `[t]he pleadings define the issues to be considered on a motion for summary judgment. [Citation.] We next evaluate the moving defendants effort to meet its burden of showing that plaintiffs cause of action has no merit or that there is a complete defense to it. Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of material fact exists as to its complaint. If the filings in opposition raise triable issues of material fact the motion must be denied; if they do not, the motion must be granted[.] [Citations.]"<sup>17</sup> "An `assertion . . . based solely on conjecture and speculation is insufficient to avoid summary judgment. [Citations.]"¹⁸

17 Miscione v. Barton Development Co., supra, 52 Cal.App.4th at pages 1324-1325; Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at page 850.

18 Sanchez v. Swinerton & Walberg Co. (1996) 47 Cal.App.4th 1461, 1466, quoting Burton v. Security Pacific Nat. Bank (1988) 197 Cal.App.3d 972, 978.

2. Probable Cause Stipulation

The trial court granted summary judgment as to the first, second, and eighth causes of action on the ground it was undisputed probable cause existed for plaintiffs arrest. The court also granted summary judgment as to the first and second causes of action on the ground defendants were immune from liability under Penal Code section 836.5, subdivision (b).

In the criminal proceeding, plaintiff stipulated there was probable cause for officer Echevarria to stop and arrest her. The undisputed existence of probable cause defeats plaintiffs first, second, and eighth causes of action for false arrest/imprisonment; battery for arresting and handcuffing plaintiff; and negligent arrest without probable cause, in violation of Penal Code section 836, subdivision (a)(3).

(a) Construing the Probable Cause Stipulation

Plaintiff argues the stipulation does not establish probable cause for the stop and arrest because the stipulation states there was probable cause "on the counts as charged," and she was never charged with a felony. Although she was initially arrested for assault with a deadly weapon, a felony, the charges ultimately filed against her were for the misdemeanor offenses of reckless driving¹⁹ and hit and run.²⁰

19 Vehicle Code section 23103.

20 Vehicle Code section 20002, subdivision (a).

Plaintiff asserts that Echevarria did not observe plaintiff committing the charged offenses, and under Penal Code section 836.5, subdivision (a), a peace officer cannot lawfully arrest an individual for a misdemeanor offense unless the offense is committed in the officers presence.

But plaintiff was stopped and arrested for assault with a deadly weapon, a felony, and Penal Code section 836, subdivision (a) provides: "A peace officer may arrest a person . . . whenever any of the following circumstances occur: [¶] (1) The officer has probable cause to believe that the person to be arrested has committed a public offense in the officers presence. [¶] (2) The person arrested has committed a felony, although not in the officers presence. [¶] (3) The officer has probable cause to believe that the person to be arrested has committed a felony, whether or not a felony, in fact, has been committed."

Plaintiff contends she only stipulated there was probable cause to arrest her for the misdemeanors but not for the felony. She then asserts there could not be probable cause for the misdemeanors under Penal Code section 836.5 because Echevarria was not present during the misdemeanor offenses. But the fact of the matter is plaintiff stipulated there was probable cause for Echevarria stopping and arresting her.

Plaintiff attempts to circumvent the clear meaning and intent of the stipulation to avoid its undesirable consequences by arguing that her criminal attorney, Victor Palacios, added the words, "crimes as charged," with the intent of preventing the stipulation from precluding plaintiff from proceeding with the instant lawsuit. But we find no ambiguity in the stipulation. It clearly states plaintiff stipulated there was probable cause for stopping and arresting plaintiff. Any interpretation to the contrary on the part of plaintiff and her attorneys was subjective and unreasonable. Limiting the probable cause stipulation, as plaintiff argues, would render the stipulation virtually meaningless.

While plaintiff may have intended such a consequence, "A partys subjective intent cannot be used to create an ambiguity or a material factual issue. `[E]vidence of the undisclosed subjective intent of the parties is irrelevant to determining the meaning of contractual language. [Citation.]"²¹ Plaintiff and her attorneys subjective expectations as to the stipulation not encompassing probable cause at issue in the instant case are irrelevant.

21 Havstad v. Fidelity National Title Ins. Co. (1997) 58 Cal.App.4th 654, 661, quoting Winet v. Price (1992) 4 Cal.App.4th 1159, 1166, footnote 3.

Even if this court considers plaintiffs extrinsic evidence in construing the stipulation, we conclude there is no triable issue. Plaintiffs proffered extrinsic evidence does not establish the stipulation is reasonably susceptible of any meaning other than that there was probable cause to stop and arrest plaintiff, regardless of what the ultimately filed charges were.

Plaintiff and her attorneys undisclosed subjective intent to circumvent the stipulation by adding the words, "crimes as charged," does not defeat the plain language of the stipulation admitting the existence of probable cause. The term, "charge," as defined in the dictionary, means "to accuse of wrongdoing."²² It is undisputed plaintiff was initially accused of committing assault with a deadly weapon, although the district attorney ultimately did not file that charge against her. We conclude that by stipulating to probable cause, plaintiff admitted Echevarria had probable cause to stop and arrest her.

22 Websters New World Dictionary (3d College ed. 1988), page 236.

(b) Voluntariness of Stipulation

Plaintiff argues the stipulation is illegal and invalid because she did not freely and voluntarily sign it. She claims defendants and her attorneys coerced her into stipulating to probable cause. Her attorneys pressured her to authorize the stipulation and defendants used the stipulation as an unlawful ruse to avoid liability in plaintiffs pending civil case against them. Plaintiff complains that the prosecutor coerced her into stipulating to probable cause by agreeing to dismiss the misdemeanor charges in return for her stipulation.

Under similar circumstances in Leonard v. City of Los Angeles,²³ the plaintiff in a civil false imprisonment lawsuit, stipulated there was probable cause for his arrest for committing a misdemeanor property offense. Thereafter, upon the district attorneys recommendation, the court dismissed the misdemeanor charge. The Leonard court reversed the trial courts holding that the probable cause stipulation was invalid and not binding in the civil action.²⁴ The Leonard court explained that, "When a proposed stipulation is accepted by the other side, such stipulation becomes binding upon the court so long as it is not illegal or contrary to public policy."²⁵

23 Leonard v. City of Los Angeles (1973) 31 Cal.App.3d 473.

24 Leonard v. City of Los Angeles, supra, 31 Cal.App.3d at page 479; see also Hoines v. Barneys Club, Inc. (1980) 28 Cal.3d 603, 609.

25 Leonard v. City of Los Angeles, supra, 31 Cal.App.3d at page 477.

Recognizing that the stipulation undoubtedly was solicited and made in order to foreclose the civil suit, the Leonard court noted that it was not concerned with the stipulations purpose "but with the right of the parties to make such a stipulation and its binding effect upon the trial court in the civil case."²⁶

26 Leonard v. City of Los Angeles, supra, 31 Cal.App.3d at page 477.

The Leonard court indicated there was no impropriety nor was the stipulation invalid simply because it was solicited for the purpose of foreclosing the defendant in a criminal matter from bringing a civil action against those involved in the criminal case. The parties to the stipulation had the right to enter into such a stipulation so long as the stipulation was not against public policy.²⁷

27 Leonard v. City of Los Angeles, supra, 31 Cal.App.3d at page 477.

Likewise, here, the probable cause stipulation is valid and binding in the instant civil action. Plaintiff argues that under Leonard v. City of Los Angeles,²⁸ the stipulation is unenforceable and inadmissible because it is against public policy based on Evidence Code sections 1152, 1153, and 1153.5. None of those provisions are relevant.

28 Leonard v. City of Los Angeles, supra, 31 Cal.App.3d at page 477.

Evidence Code section 1152 provides that offers to compromise and statements made during settlement negotiations are inadmissible. The stipulation is not a compromise offer or a statement made in settlement negotiations. It is a fully executed stipulation, admitting probable cause.

Evidence Code section 1153 provides that evidence of withdrawn guilty pleas and offers to plead guilty are inadmissible. This provision is also irrelevant because the stipulation is not a withdrawn guilty plea or offer to plead guilty. Finally, Evidence Code section 1153.5 is inapplicable since it pertains to offers and admissions made during negotiations for civil resolution of crimes against property, such as arson. This provision is inapplicable to an executed probable cause stipulation.

In Hoines v. Barneys Club, Inc.,²⁹ the California Supreme Court held that a release of civil liability, as well as a stipulation of probable cause for arrest, does not contravene public policy when the prosecutor procures such a release or stipulation in the interests of justice, without coercion:³⁰ According to Hoines, "the time honored practice of discharging misdemeanants on condition of a release of civil liabilities or stipulation of probable cause for arrest, does not contravene public policy when the prosecutor acts in the interests of justice."³¹

29 Hoines v. Barneys Club, Inc., supra, 28 Cal.3d 603.

30 Hoines v. Barneys Club, Inc., supra, 28 Cal.3d at pages 609-610, 613-614.

31 Hoines v. Barneys Club, Inc., supra, 28 Cal.3d at pages 613-614.

The Hoines court concluded the stipulation was not coerced for a number of reasons, including the plaintiff was well informed of the law; the plaintiff signed the release knowing its import, meaning and effect; the state lacked a keen interest in pursuing a jury trial on a misdemeanor charge although there was probable cause; the release furthered fairness to other concerned parties who had acted on such probable cause; the plaintiff was at liberty on bail and had the right to trial at his option; and the plaintiff "exercised a free will in electing to release all parties from potential civil damages in order to avoid a trial exposing him to criminal liability involving the very issues he now raises."³²

32 Hoines v. Barneys Club, Inc., supra, 28 Cal.3d at page 609.

The Leonard court also concluded there was no evidence of coercion because, "[I]n respect to any claimed coercion, the trial court specifically found that plaintiff authorized the stipulation `after consulting his attorney and being informed of all the consequences."³³

33 Leonard v. City of Los Angeles, supra, 31 Cal.App.3d at page 479.

For many of the same reasons enumerated in Hoines and Leonard, we conclude it is undisputed plaintiff was not coerced into stipulating to probable cause and plaintiff has not sufficiently established that additional discovery might disclose coercion, unlawful collusion or conspiracy between the defendants. At the time plaintiff entered into the stipulation, she was represented by both a civil and criminal attorney, both of whom discussed with her the ramifications of the stipulation and recommended she sign it. Plaintiff complains that she was pressured into authorizing the stipulation by her own attorneys, one of whom was her husband. But certainly this does not constitute grounds for nullifying a stipulation. If she received bad advice and or feels her attorneys inappropriately persuaded her to authorize the stipulation, she has other avenues of relief.

Plaintiff cites MacDonald v. Musick ³⁴ and the Hoines dissent for the proposition that the probable cause stipulation is illegal and invalid because it conditions dismissal of criminal charges on waiver of plaintiffs related civil claims against defendants. The Hoines dissent, of course is not binding precedent,³⁵ and MacDonald is not on point. In distinguishing MacDonald, the courts in Leonard and Hoines note that in MacDonald there was no stipulation. The plaintiff refused to sign the probable cause stipulation. Also, there was coercion, which the plaintiff resisted.

34 MacDonald v. Musick (9th Cir. 1970) 425 F.2d 373.

35 Auto Equity Sales, Inc. v. Superior Court (Hesenflow) (1962) 57 Cal.2d 450, 455.

(c) Judicial Notice

Plaintiff argues the trial court erred in judicially noticing the probable cause stipulation since it contained inherently unreliable hearsay. This contention is meritless. "`A trial court may properly take judicial notice of the records of any court of record of any state of the United States. [Citations.] But, as is stated in Jefferson, California Evidence Benchbook (1972) Judicial Notice, section 47.3, at page 840: "Caveat: Limitations on judicial notice of court records. What is meant by taking judicial notice of court records? There exists a mistaken notice that this means taking judicial notice of the existence of facts asserted in every document of a court file, including pleadings and affidavits. However, a court cannot take judicial notice of hearsay allegations as being true, just because they are part of a court record or file."³⁶

36 In re Tanya F. (1980) 111 Cal.App.3d 436, 440, italics omitted.

The stipulation is a court document filed in plaintiffs criminal case, whereby plaintiff and the prosecutor agree to the existence of probable cause and the facts contained in the stipulation. The trial court thus did not abuse its discretion in taking judicial notice of the stipulation as a court document and as to the fact plaintiff admitted there was probable cause to stop and arrest her.³⁷

37 Evidence Code section 452; In re Tanya F., supra, 111 Cal.App.3d at page 440.

(d) Collateral Estoppel

Plaintiff argues the stipulation does not have collateral estoppel effect in barring plaintiff from litigating the issue of probable cause in this action. Even assuming there is no collateral estoppel effect, the stipulation, entitled "Stipulation re: Factual Finding of Probable Cause," is admissible as to plaintiffs admission of probable cause to stop and arrest her.

Evidence Code section 1220 provides: "Evidence of a statement is not made inadmissible by the hearsay rule when offered against the declarant in an action to which he is a party in either his individual or representative capacity." A stipulation in one proceeding may be binding in a proceeding subsequent to the one in which the stipulation is entered.³⁸

38 Leonard v. Los Angeles, supra, 31 Cal.App.3d at pages 477, 479; Hoines v. Barneys Club, Inc., supra, 28 Cal.4th at page 609; Nungaray v. Pleasant Valley etc. Assn. (1956) 142 Cal.App.2d 653, 667; People v. Washington (1982) 131 Cal.App.3d 434, 438, footnote 2; Gonzales v. Pacific Greyhound Lines (1950) 34 Cal.2d 749, 754-755.

Here, plaintiff failed to provide any evidence, or the likelihood of discovering any evidence, that the probable cause stipulation was inadvertently, involuntarily or unknowingly made, or was unauthorized by her or made under coercion or due to fraud. The evidence shows she was represented by two attorneys when she entered into the stipulation and was fully apprised of the underlying facts. She voluntarily authorized the stipulation, as recommended by her attorneys. Furthermore, plaintiff did not move to set aside the stipulation when defendants moved for summary judgment based on the stipulation. Under these circumstances, we conclude that the probable cause stipulation was admissible as an admission under Evidence Code section 1220.

Plaintiff argues that even if the stipulation is admissible, it only defeats the first cause of action for false arrest/imprisonment. We disagree. Summary judgment is also appropriate as to the second cause of action for battery and the eighth cause of action for negligence since a finding of the absence of probable cause to stop and arrest plaintiff is a prerequisite to both claims.³⁹

39 See Penal Code sections 836, subdivision (a) and 836.5, subdivision (b), and Government Code section 820.4.

As noted by the United States Supreme Court in Pierson v. Ray,⁴⁰ "Under the prevailing view in this country a peace officer who arrests someone with probable cause is not liable for false arrest simply because the innocence of the suspect is later proved. [Citations.] A policemans lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he has probable cause, and being mulcted in damages if he does."⁴¹ There being irrefutable probable cause for plaintiffs arrest, the trial court properly granted summary judgment as to the first cause of action for false arrest/imprisonment, as well as the second cause of action for battery and eighth cause of action for negligent failure to perform mandatory duties.

40 Pierson v. Ray (1967) 386 U.S. 547, 555 [87 S.Ct. 1213, 18 L.Ed.2d 288].

41 Pierson v. Ray, supra, 386 U.S. at page 555 [87 S.Ct. 1213, 18 L.Ed.2d 288, 295], overruled on other grounds Harlow v. Fitzgerald (1982) 457 U.S. 800 [102 S.Ct. 2727, 73 L.Ed.2d 396]; see also Giannis v. City & County of San Francisco (1978) 78 Cal.App.3d 219.

D. Governmental Immunity

Plaintiff argues the trial court erred in granting summary judgment based on a finding of governmental immunity as to the third, fourth, fifth, sixth, ninth, and tenth causes of actions. We disagree.

1. Third and Fourth Causes of Action

In the third cause of action for defamation and fourth cause of action for invasion of privacy plaintiff alleges Echevarria and his supervisor falsely stated plaintiff had committed the felony of assault with a deadly weapon by slamming on her car brakes and causing damage to another motorists vehicle. This statement was reported in Echevarrias probable cause declaration, which was reviewed and approved by Echevarrias watch commander, Lieutenant Lines, and was publicly stated, as well. The statement allegedly led to plaintiffs arrest and prosecution.

The trial court granted summary judgment as to the third and fourth causes of action on the ground defendants were absolutely immune from liability for injuries suffered by a public employees prosecution of a judicial proceeding. Defendants asserted immunity for these causes of action under Government Code section 821.6 and Civil Code section 47, subdivisions (a) and (b).

Government Code section 821.6 immunizes public employees from tort liability for instituting or prosecuting a judicial proceeding. It provides: "A public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause."

This immunity is founded on the proposition: "The criminal law does not enforce itself; instead, our system of law enforcement depends upon the investigation of crime and the accusation of offenders by properly trained officers. [Citations.] The impartiality of that system requires that, when exercising that responsibility, the officers are free to act in the exercise of honest judgment uninfluenced by fear of consequences personal to themselves. [Citation.] To eliminate that fear of litigation and to prevent the officers from being harassed in the performance of their duties, law enforcement officers are granted immunity from civil liability, even for the malicious abuse of their power. [Citation.] [I]n the end, [it is] better to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation. [Citations.]"⁴²

42 Amylou R. v. County of Riverside (1994) 28 Cal.App.4th 1205, 1212-1213, internal quotation marks omitted; see also Javor v. Taggart (2002) 98 Cal.App.4th 795, 808-809.

Plaintiff argues that under Pierson v. Ray,⁴³ although prosecutors and judges have absolute immunity, police officers do not. Police officers have qualified immunity. But in the instant case, Pierson is not persuasive authority for this proposition. Pierson involves a lawsuit in Mississippi for violation of civil rights actions under 42 United States Code section 1983, false arrest, and imprisonment violations. The civil action arose from a Mississippi criminal prosecution. The instant case involves immunity based on California statutory law, not federal common law or Mississippi law.

43 Pierson v. Ray, supra, 386 U.S. at page 555.

"Under California law the immunity statute [Government Code section 821.6] is given an `expansive interpretation in order to best further the rationale of the immunity, that is, to allow the free exercise of the prosecutors discretion and protect public officers from harassment in the performance of their duties. [Citations.] . . . [T]he test of immunity is . . . whether there is a causal relationship between the publication and the prosecution process. If the making and publication of the statements were part of the process, they were protected by the immunity in section 821.6."⁴⁴ This applies to peace officers as well as public prosecutors since both are public employees within meaning of the Government Code,⁴⁵ and applies to defamation claims.⁴⁶

44 Ingram v. Flippo (1999) 74 Cal.App.4th 1280, 1292-1293.

45 Asgari v. City of Los Angeles (1997) 15 Cal.4th 744, 756-757.

46 Ingram v. Flippo, supra, 74 Cal.App.4th 1280.

Based on the above authority, the trial court in Ingram v. Flippo,⁴⁷ explained that, "To the extent that the allegations in appellants complaint can be construed to state a cause of action for defamation, or seek to enjoin the District Attorney from interfering with her rights of free speech, we believe the prosecutorial immunity contained in section 821.6 provides an independent basis for sustaining the demurrer."⁴⁸

47 Ingram v. Flippo, supra, 74 Cal.App.4th 1280.

48 Ingram v. Flippo, supra, 74 Cal.App.4th 1280, 1292; see also Amylou R. v. County of Riverside, supra, 28 Cal.App.4th 1205.

Likewise, in the instant court, Echevarrias statement of probable cause was subject to immunity under Government Code section 821.6. Echevarria made the statement in the course of performing his law enforcement duties and thus summary judgment was proper as to the third cause of action for defamation and fourth cause of action for invasion of privacy.

2. Fifth Cause of Action

Plaintiff contends the trial court erred in granting summary judgment as to the fifth cause of action for abuse of process under Government Code section 821.6 and Civil Code section 47.

In the fifth cause of action plaintiff alleges defendants, Officer Echevarria, Lieutenant Lines, Sgt. Adams, and Police Chief Thouvenell, abused the legal process by not adequately investigating the road rage incident or plaintiffs police misconduct complaint regarding Echevarrias conduct, and collusively covered up Echevarrias mistakes and misconduct. Plaintiff claims each of the defendants knew the charges against her were false but nevertheless collusively instigated or caused to be initiated the filing of criminal charges against her, and failed to recommend dismissal of the groundless charges once they were filed.

In Taylor v. Jones,⁴⁹ the court affirmed summary judgment as to the abuse of process and various other claims based on immunity under Government Code section 821.6. The Taylor court explained, "Defendants were not liable as a matter of law under any of the theories pled. As to the common law actions, the public employee defendants were immune from liability for any injury caused in prosecuting the criminal proceeding. [Citations.] The employee immunity also inured to the benefit of the county, as their public entity employer. (Gov. Code, § 815.2, subd. (b).)"⁵⁰

49 Taylor v. Jones (1981) 121 Cal.App.3d 885.

50 Taylor v. Jones, supra, 121 Cal.App.3d at page 891.

As explained more recently in City of South San Francisco v. Cypress Lawn Cemetery Assn.,⁵¹ "In purely private litigation, damages may be recovered by way of either a simple motion or an independent common law action for malicious prosecution or abuse of process. [Citations.] These remedies are not available against governmental entities, however, because they and their employees enjoy statutory immunity."⁵² The court noted that applying immunity served the public good by reducing public funds expended in "defending against efforts to recover, and responding in damages like private parties. Another advantage promoted is that those responsible for vigorous law enforcement and public administration are not inhibited by fears of personal and institutional liability."⁵³

51 City of South San Francisco v. Cypress Lawn Cemetery Assn. (1992) 11 Cal.App.4th 916, 922.

52 City of South San Francisco v. Cypress Lawn Cemetery Assn., supra, 11 Cal.App.4th at page 922.

53 City of South San Francisco v. Cypress Lawn Cemetery Assn., supra, 11 Cal.App.4th at page 922.

Here, defendants are immune from liability for abuse of prosecution and thus the trial court appropriately granted summary judgment as to the fifth cause of action under Government Code section 821.6.

3. Sixth Cause of Action

Plaintiff argues the trial court erroneously granted summary judgment as to the sixth cause of action for intentional infliction of emotional distress. The sixth cause of action is premised on the same wrongdoing alleged in the third, fourth, and fifth causes of actions, which include allegations of defamation, abuse of process, and negligent investigation. The trial court granted summary judgment on the ground defendants were immune from liability under Government Code section 821.6 and Civil Code section 47.

As in Amylou R. v. County of Riverside,⁵⁴ plaintiffs emotional distress claim is subject to governmental immunity under Government Code section 821.6. In Amylou, the plaintiff alleged that the county and its investigating officers committed negligent investigation, assault, false imprisonment, slander, and negligent and intentional infliction of emotional distress. As to the emotional distress claims, we held in Amylou that the defendant county was immune under Government Code section 821.6.

54 Amylou R. v. County of Riverside, supra, 28 Cal.App.4th at page 1211.

In finding immunity, we explain in Amylou that, "the rule in this state is that, unless otherwise provided by statute, `[a] public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person. (§ 815, subd. (a).) Accordingly, governmental immunity is the rule, and liability is the exception. [Citation.] [¶] Given that general rule, the specific public policy in favor of immunity for law enforcement officers, . . . we hold that section 821.6 bars claims made by anyone who has been injured as a result of the institution or prosecution of the prior judicial or administrative proceeding."⁵⁵

55 Amylou R. v. County of Riverside, supra, 28 Cal.App.4th at pages 1213-1214.

Here, plaintiffs emotional distress claim arises out of defendants investigation, institution, and prosecution of criminal charges against plaintiff, and therefore under Government Code section 821.6, defendants are immune from liability.

4. Ninth Cause of Action for Negligence in Violation of Mandatory Duties

Plaintiff complains that the trial court erred in granting summary judgment as to the ninth cause of action for negligent failure to perform mandatory duties under Government Code section 815.6. Plaintiff alleges defendants failed to exercise reasonable diligence in discharging their duties and acted negligently in reporting, investigating, arresting, and imprisoning road rage perpetrators; dispatching plaintiffs 911 telephone call; receiving, reporting, and investigating plaintiffs road rage report; and arresting plaintiff without probable cause.

The trial court granted summary judgment as to the ninth cause of action on the grounds defendants "are immune from liability based on their discretionary acts and [plaintiff] has failed to meet its burden of showing that there is any triable issue of material fact relating to any claimed mandatory duty because the only statute providing such a duty identified by plaintiff was not alleged as a basis for the cause of action in the complaint."

Plaintiff brings the ninth cause of action under Government Code section 815.6, which provides: "Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty."

"`Before the state will be required to confront a rebuttable presumption of negligence [citations], plaintiff must demonstrate that: (1) the statute which was violated imposes a mandatory duty, (2) the statute was intended to protect against the type of harm suffered, and (3) breach of the statutes mandatory duty was a proximate cause of the injury suffered. [Citations.] Questions of statutory immunity do not become relevant until it has been determined that the defendant otherwise owes a duty of care to the plaintiff and thus would be liable in the absence of such immunity [citation]. However, a defendant may not be held liable for the breach of a duty if such an immunity in fact exists. (Gov. Code, § 815.) [¶] `A plaintiff asserting liability under Government Code section 815.6 "must specifically allege the applicable statute or regulation." [Citation.] [Citation.]"⁵⁶

56 Washington v. County of Contra Costa (1995) 38 Cal.App.4th 890, 895; italics added.

In the instant case, plaintiff failed to allege violation of any statute which imposes a mandatory duty on defendants. Furthermore, plaintiff essentially complains in the ninth cause of action of the same conduct alleged in the other causes of actions which is subject to immunity under Government Code section 821.6. Thus, the alleged wrongful conduct complained of in the ninth cause of action is subject to immunity under Government Code section 821.6 for the same reasons discussed with regard to the other causes of actions. The trial court correctly granted summary judgment as to the ninth cause of action.

5. Tenth Cause of Action for Negligence Under Government Code section 815.2

Plaintiff complains that the trial court erred in granting summary judgment as to the tenth cause of action for negligence under the discretionary immunity provision, Government Code section 815.2.

Plaintiff alleges in the tenth cause of action that a special relationship existed between plaintiff and defendants that gave rise to a responsibility by defendants to exercise reasonable diligence in discharging their duties, including properly reporting, investigating, arresting, and imprisoning road rage perpetrators. Plaintiff claims defendants were negligent under Government Code section 815.2 for negligently hiring, training, supervising, and disciplining defendant-employees; failing to comply with police procedures and laws; failing to implement a "road rage" program; negligently investigating the incident and plaintiffs police misconduct complain; negligently handling 911 telephone calls; failing to arrest Moxham and wrongfully arresting plaintiff based on an erroneous finding of probable cause; failing to dismiss charges against plaintiff; and failing to order or recommend plaintiffs release on the day of her arrest, after defendants were notified defendants arrested the wrong suspect. The trial court granted summary judgment as to the tenth cause of action on the ground defendants were immune from liability based on their discretionary acts.

Plaintiffs tenth cause of action is premised on Government Code section 815.2, subdivision (a), which provides: "A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative."

Government Code sections 815.2, subdivision (b) and 820.2, when read together, create what has been called "discretionary act immunity." Government Code section 815. 2, subdivision (b) provides: "Except as otherwise provided by statute, a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability." Government Code section 820.2 provides, as relevant here: "[A] public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused."

Not all public employee discretionary acts entail the use of "discretion" within the meaning of Government Code section 820.2.⁵⁷ "`[I]t would be difficult to conceive of any official act, no matter how directly ministerial, that did not admit of some discretion in the manner of its performance, even if it involved only the driving of a nail. [Citations.]"⁵⁸

57 Barner v. Leeds (2000) 24 Cal.4th 676, 684-685.

58 Johnson v. State of California (1968) 69 Cal.2d 782, 788, quoting Ham v. County of Los Angeles (1920) 46 Cal.App. 148, 162.

A discretionary act within the meaning of Government Code section 820.2 "draws the line between `planning and `operational functions of government. [Citation.] Immunity is reserved for those `basic policy decisions [which have] . . . been [expressly] committed to coordinate branches of government, and as to which judicial interference would thus be `unseemly. [Citation.] Such `areas of quasi-legislative policy-making . . . are sufficiently sensitive [citation] to call for judicial abstention from interference that `might even in the first instance affect the coordinate bodys decision-making process [citation]. [¶] On the other hand, . . . there is no basis for immunizing lower-level, or `ministerial, decisions that merely implement a basic policy already formulated. [Citation.]"<sup>59</sup> "The scope of the discretionary act immunity `should be no greater than is required to give legislative and executive policymakers sufficient breathing space in which to perform their vital policymaking functions. [Citation.]"⁶⁰

59 Caldwell v. Montoya (1995) 10 Cal.4th 972, 981, quoting Johnson v. State of California, supra, 69 Cal.2d at pages 793, 794, 796, italics omitted.

60 Barner v. Leeds, supra, 24 Cal.4th at page 685, quoting Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 445.

Again, plaintiff realleges in the tenth cause of action the same acts and omissions stated in the other causes of actions which were properly summarily adjudicated based on governmental immunity and the undisputed existence of probable cause for plaintiffs arrest. While discretionary immunity under Government Code section 820.2 may not apply to all of plaintiffs alleged misconduct, immunity under Government Code section 821.6 applies, as previously discussed in this opinion. Therefore, summary judgment is appropriate as to the tenth cause of action.

E. Seventh Cause of Action for Civil Rights Violations

Plaintiff complains that defendants did not address in their summary judgment motion the seventh cause of action for federal civil rights violations.⁶¹ Therefore, plaintiff argues, the trial court erred in granting summary judgment as to this cause of action. We note this cause of action is only against defendant officers Echevarria, Lines, Adams, and Thouvenell.

61 Federal Civil Rights Act, 42 United States Code section 1983.

The defendants failure to address the seventh cause of action appears to be due to the erroneous assumption plaintiff had dismissed the claim. On December 7, 2001, defendants removed this case to the federal court based on the complaint containing a civil rights claim. After removal of the action to federal court, on December 14, 2001, plaintiff executed a request for dismissal of the seventh cause of action and filed the dismissal form with the superior court that same day. On December 20, 2001, plaintiff moved to remand the case to the superior court on the ground plaintiffs complaint did not contain a federal cause of action since plaintiff intended the seventh cause of action for civil rights violations to be brought under California not federal law.

On January 14, 2002, the federal court remanded the case back to the superior court on the ground that, since the seventh cause of action was a state law claim, there was no federal jurisdiction. The federal court noted in its remand decision that plaintiff had filed a request for dismissal of the seventh cause of action in the superior court and, since the request was filed a week after removal of the case to the federal court, the state court no longer had jurisdiction to dismiss the claim and therefore the dismissal request was invalid.

When defendants filed their summary judgment motion, they made no mention of the seventh cause of action. As a consequence, plaintiff argued in her summary judgment opposition and during oral argument that summary judgment must be denied. Defendants argued in their reply that there was no need to address the seventh cause of action because the cause of action had been dismissed. Attached to defense counsels supporting declaration was a copy of a file-stamped dismissal form indicating plaintiff had dismissed the seventh cause of action. The trial courts order stating its grounds for granting summary judgment makes no mention of adjudication of the seventh cause of action.

Defendants acknowledge in their respondents brief that plaintiff is technically correct that the seventh cause of action was not dismissed and the seventh cause of action was not addressed in the summary judgment motion. Defendants, however, argue that this omission is of no consequence because the seventh cause of action on its face has no merit. Defendants argue the seventh cause of action fails to state a valid cause of action because defendants alleged wrongful actions were not taken because of plaintiffs membership in a protected group, such as those discriminated against based on race, color, religion, ancestry, national origin, political affiliation, sex, sexual orientation, age, disability, or position in a labor dispute.⁶²

62 Boccato v. City of Hermosa Beach (1994) 29 Cal.App.4th 1797, 1809.

In the seventh cause of action plaintiff alleges defendants violated her civil rights under Civil Code section 52.1. This section provides that a person may bring a civil action for damages against "a person or persons, whether or not acting under color of law, [who] interferes by threats, intimidation, or coercion, or attempts to interfere by threats, 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."⁶³

63 Civil Code section 52.1, subdivision (a).

Plaintiff alleges in the seventh cause of action that defendants violated her civil rights to privacy and to freedom of movement. She claims defendants fabricated probable cause for her arrest; falsely arrested her based on her ethnicity or because she was female; attempted to cover up the false arrest; failed to independently investigate her false arrest; and on a regular basis committed improper investigations.

Since plaintiff alleges her civil rights were violated based on her sex and ethnicity, contrary to defendants assertion, plaintiff has alleged her rights were violated based on membership in a group. While we doubt plaintiff can prevail on the seventh cause of action, defendants did not sufficiently address the seventh cause of action in their summary judgment motion and therefore summary judgment is improper as to this cause of action.

II. ATTORNEYS FEES AND COSTS APPEAL

After the trial court entered summary judgment against plaintiff and plaintiff filed a notice of appeal, defendants filed a motion for attorneys fees and costs under sections 128.5, 1021.7, and 1038. At the initial hearing on the motion, plaintiff orally argued the court did not have jurisdiction to hear the motion because proceedings were stayed due to plaintiffs pending summary judgment appeal. The trial court requested briefing on the jurisdiction issue.

After the parties briefed the issue and the court heard oral argument, the trial court concluded it had jurisdiction and set a hearing on the motion. Plaintiff filed an additional opposition brief. Following oral argument on the motion, the trial court awarded defendants their fees and costs under section 1021.7 on the ground plaintiffs action was not maintained with reasonable cause. Plaintiff filed a second appeal challenging the award of fees and costs.

A. Jurisdiction

Plaintiff argues the trial court did not have jurisdiction to decide defendants motion for attorneys fees and costs under section 916, subdivision (a) because the trial court proceedings were stayed after plaintiff appealed summary judgment.

Under section 916, subdivision (a), "the perfecting of an appeal stays [the] proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby, including enforcement of the judgment or order, but the trial court may proceed upon any other matter embraced in the action and not affected by the judgment or order."⁶⁴

64 Section 916, subdivision (a).

The purpose of the rule staying trial court proceedings during a pending appeal is to protect the appellate courts jurisdiction by preserving the status quo until the appeal is decided. The trial court is prevented from rendering an appeal futile by altering the appealed judgment or order by conducting other proceedings that may affect it. But a pending appeal does not divest the trial court of jurisdiction to determine ancillary or collateral matters that do not affect the judgment on appeal.⁶⁵ "Whether a matter is `embraced in or `affected by a judgment within the meaning of section 916 depends upon whether postjudgment trial court proceedings on the particular matter would have any impact on the `effectiveness of the appeal. If so, the proceedings are stayed; if not, the proceedings are permitted. [Citation.]"⁶⁶

65 Betz v. Pankow (1993) 16 Cal.App.4th 931, 938.

66 Betz v. Pankow, supra, 16 Cal.App.4th at page 938.

In Robertson v. Rodriguez,⁶⁷ the plaintiff argued the trial court did not have jurisdiction under section 916, subdivision (a) to decide the defendants motion for attorneys fees and costs due to the pendency of the plaintiffs appeal of a ruling granting the defendants motion to strike. The trial court disagreed and granted the defendants motion for attorneys fees and costs. On appeal, the Robertson court affirmed, explaining, "The trial court properly concluded it had jurisdiction to proceed because the trial court `retains jurisdiction to entertain a motion for attorney fees despite an appeal. [Citation.]"⁶⁸

67 Robertson v. Rodriguez (1995) 36 Cal.App.4th 347.

68 Robertson v. Rodriguez, supra, 36 Cal.App.4th at page 360.

Likewise, in the instant case, despite the pendency of plaintiffs summary judgment appeal, the trial court retained jurisdiction to hear defendants motion for attorneys fees and costs. The award of attorneys fees and costs was collateral to the summary judgment ruling and had no bearing or impact on the effectiveness or enforceability of the underlying judgment.

B. Rights to Due Process, Equal Protection, and a Fair Trial

Plaintiff argues that in the process of granting defendants attorneys fees and costs the trial court denied her rights to due process, equal protection, and a fair trial based on a number of grounds. First, plaintiff complains the trial court did not consider her briefs on jurisdiction and reasonableness of fees. She assumes this based on the register of actions entries which state defendants brief and supplemental declaration were sent to the court legal research department but there is no indication that plaintiffs three briefs were also sent to the research department. The register of actions only states the documents were filed.

The fact that the register of actions does not state plaintiffs briefs were forwarded to the court research department does not establish the court did not consider plaintiffs briefs and fairly decide the matter. The trial court judge decides the matter, not the court research attorney, and there is nothing in the record reflecting that the judge did not review plaintiffs briefs.

Judge Blackwell stated during the motion hearing on December 23, 2001, that he had considered everything that had been timely filed, including plaintiffs brief filed on December 4, 2002. The court further stated during the hearing on December 23, 2001, that it had not disregarded plaintiffs supplemental brief filed on December 13, 2001, even though plaintiff filed it late and without leave of court. Since there is nothing in the record to the contrary, it can likewise be assumed that at the subsequent hearing on January 17, 2003, the court considered plaintiffs brief filed on January 10, 2003. Furthermore, plaintiff fails to establish she was prejudiced such that the court reached an incorrect result.

Next, plaintiff complains the trial court refused to consider controlling legal authority cited by plaintiff in her opposition to the motion for attorneys fees and costs. During oral argument, plaintiffs attorney cited Elsea v. Saberi ⁶⁹ for the proposition the summary judgment appeal stayed the trial court proceedings and thus the trial court did not have jurisdiction to hear defendants motion for attorneys fees and costs. The court responded that plaintiff did not cite Elsea in her original jurisdiction brief filed on December 4, 2002, and therefore defendants had not had an opportunity to review and respond to the case. The court noted plaintiff cited the case in a supplemental brief, which was not timely filed and which plaintiff had not received leave from court to file.

69 Elsea v. Saberi (1992) 4 Cal.App.4th 625.

Plaintiff complains on appeal the trial court did not consider Elsea but the record shows otherwise. The court merely chastised plaintiff for arguing case law which she had not cited in her initial brief and which defendants had not had an opportunity to review and refute. The trial court ultimately stated that nevertheless the court was not disregarding plaintiffs supplemental brief.

Furthermore, Elsea is not controlling. While it states general principles regarding staying trial court proceedings during the pendency of an appeal, it is not factually on point and does not stand for the proposition the trial court may not decide a motion for attorneys fees and costs during the pendency of an appeal on an underlying judgment. As discussed above, Robertson supports the trial courts determination in the instant case that it had jurisdiction to decide defendants motion for attorneys fees and costs since the motion involved a collateral matter. Plaintiffs claim that the trial court violated her rights to due process, equal protection, and fair trial because the trial court would not consider case law cited in her supplemental brief and during oral argument is meritless.

Finally, plaintiff complains that the trial court did not review the entire court file before deciding defendants motion for attorneys fees and costs. We reject this argument as well.

Plaintiff complains the trial court did not have the entire court file when it decided defendants motion for attorneys fees and costs since it had been sent to the superior court appellate division as a consequence of plaintiffs pending summary judgment appeal.

The hearing transcript of the January 17, 2003 hearing on the fees motion indicates the trial judge actually had all four volumes of the court file. The judge indicated he had perused the entire four volumes and had reviewed everything relevant to the motion before him. The court acknowledged during the hearing he had only the fourth volume at the bench, and added he did not know what was in the other three files that he had looked at. In response to plaintiffs attorneys inquiry as to whether the court had the complete file, the trial judge stated: "I have in front of me the file that I have is I am looking at is Volume 4. But [it] has a lot of stuff in it. I mean I dont know what is in the other files that I mean I have looked at. But at least I have reviewed everything that deals with this filing which is really all thats before me."

In response to plaintiffs attorneys comment that the other three files were probably with the superior court appellate division, the trial judge stated, to the contrary, that "actually its back here. And the truth is although I have, I admit I probably havent read everything in those other three files from the beginning, I have at least perused them to see if theres something I ought to be looking at for this case." The court explained it did not have the other three volumes at the bench because "its just too heavy to carry them all. So I left it on the chair instead of brought it up to the bench."

The court did all it was required to do. It reviewed the motion papers and any other documents it deemed relevant. It had access to the entire court file. The court certainly was not required to read every single page of every document in the four volume file for purposes of deciding the motion for attorneys fees and costs. If plaintiff considered particular court documents of such critical relevance that the court should consider them along with the briefs filed in connection with the motion for attorneys fees and costs, it was incumbent upon plaintiff to bring such documents to the courts attention and request the court to review them. Plaintiffs argument that the trial court committed reversible error by not possessing and reviewing the entire court file is meritless and frivolous.

C. Fees and Costs Under Code of Civil Procedure Section 1021.7

Plaintiff contends the trial court abused its discretion in awarding defendants attorneys fees and costs under section 1021.7 by relying on an incorrect standard in awarding fees and costs. Plaintiff argues the court misconstrued section 1021.7 in the disjunctive as allowing fees upon a finding that plaintiff failed to bring her action in good faith or, alternatively, lacked reasonable cause in bringing her action. Plaintiff claims that under section 1021.7 there must be a finding of both a lack of good faith and reasonable cause.⁷⁰

70 Carroll v. State of California (1990) 217 Cal.App.3d 134, 140, 141.

During the hearing on defendants motion for attorneys fees and costs (motion for fees), the court stated, "I am going to grant the motion for attorneys fees under CCP 1021.7 and find that plaintiff did not have reasonable cause to maintain this action once the stipulation for probable cause was signed." The attorneys fees and costs judgment merely states the court granted fees pursuant to section 1021.7.

Section 1021.7 provides: "In any action for damages arising out of the performance of a peace officers duties, brought against a peace officer . . ., or against a public entity employing a peace officer or in an action for libel or slander . . ., the court may, in its discretion, award reasonable attorneys fees to the defendant or defendants as part of the costs, upon a finding by the court that the action was not filed or maintained in good faith and with reasonable cause." (Italics added.)

As plaintiff notes, the language in section 1021.7 regarding good faith and reasonable cause is analogous to that in section 1038, which also provides for recovery of defense costs by peace officers. Section 1038 provides in relevant part, "In any civil proceeding under the California Tort Claims Act . . . , the court, upon motion of the defendant or cross-defendant, shall, at the time of the granting of any summary judgment, . . . determine whether or not the plaintiff . . . brought the proceeding with reasonable cause and in the good faith belief that there was a justifiable controversy under the facts and law which warranted the filing of the complaint . . . ." (Italics added.)

While there appears to be no case law construing "good faith" and "reasonable cause" within the meaning of section 1021.7, the court in Carroll v. State of California,⁷¹ construes such language as to section 1038, and such construction is applicable here since sections 1021.7 and 1038 use the same terms within similar contexts.

71 Carroll v. State of California, supra, 217 Cal.App.3d 134.

In Carroll, the court explained that to recover defense costs under section 1038, the defendant must establish that the plaintiff brought the action without good faith or reasonable cause.⁷² "A tort action may not be brought unless both conditions are met. [Citation.] This requirement encompasses not only the filing of an action, but also its continued maintenance."⁷³

72 Carroll v. State of California, supra, 217 Cal.App.3d at pages 140, 141.

73 Carroll v. State of California, supra, 217 Cal.App.3d at page 140.

While both conditions must exist to bring an action, the absence of either condition is sufficient grounds for awarding fees under sections 1038 and 1027.1.⁷⁴

74 Kobzoff v. Los Angeles County Harbor/UCLA Medical Center (1998) 19 Cal.4th 851, 860; Gamble v. Los Angeles Dept. of Water & Power (2002) 97 Cal.App.4th 253, 259.

Plaintiff argues there was insufficient evidence to support findings of either an absence of good faith or reasonable cause. In Carroll the court discussed the meaning of both terms. In defining "good faith," the Carroll court explained: "The term `good faith defies precise definition. [Citation.] `[It] is a question of fact in each case. [Citation.] Encompassed within the legal definition of `good faith is the equitable principle of fairness. [Citation.]"⁷⁵

75 Carroll v. State of California, supra, 217 Cal.App.3d at page 141.

In defining "reasonable cause," the Carroll stated: "We believe the terms `reasonable cause and `probable cause to be synonymous. [Citation.] `Reasonable cause is defined as `. . . whether any reasonable attorney would have thought the claim tenable . . . . [Citation.]"⁷⁶ "The definition of the probable cause element is an objective standard determining `. . . the defendants belief in, or knowledge of, a given state of facts, and not . . . the defendants belief in, or evaluation of, the legal merits of the claim. [Citation.] [¶] Stated another way, `when, . . . the facts known by the attorney are not in dispute, the probable cause issue is properly determined by the trial court under an objective standard; it does not include a determination whether the attorney subjectively believed that the . . . claim was legally tenable. [Citations.] [Citation.] . . . [¶] . . . [¶] At the minimum, this term requires that the Plaintiffs attorney have some articulable fact or facts to conclude that a particular person or entity should be initially included in the lawsuit as a party-defendant."⁷⁷

76 Carroll v. State of California, supra, 217 Cal.App.3d at page 141.

77 Carroll v. State of California, supra, 217 Cal.App.3d at page 142, italics omitted.

In the instant case we find nothing in the record upon which plaintiff could base a good faith belief or reasonable cause to continue her action against defendants once she stipulated there was good cause to arrest her. Plaintiff argues, as to good faith, that there is nothing in the record reflecting her subjective state of mind and therefore no evidence she acted in bad faith. But the fact that, after signing a probable cause stipulation, plaintiff continued to pursue her lawsuit even though it was clearly groundless, and plaintiff knew the purpose of the stipulation was to preclude such litigation, is sufficient to support a reasonable finding that the lawsuit was maintained in bad faith and without reasonable cause.

Furthermore, defendants attorney suggested to Mr. Salazar that plaintiffs case was groundless in a letter noting the probable cause stipulation and requesting plaintiff to explain how she intended to prove her case in light of such a stipulation. There was no response to defense counsels letter.

We conclude there was sufficient evidence of lack of reasonable cause and good faith for continuing plaintiffs lawsuit after she signed the probable cause stipulation. As to those causes of actions that were not affected by the stipulation, governmental immunities applied which rendered the claims clearly meritless from their inception.

Plaintiff argues the trial court abused its discretion by granting defendants motion for fees based on the existence of the probable cause stipulation since a copy of the stipulation was not included in any of the motion papers and the notice of motion did not cite the stipulation as evidence relied upon in the motion. We consider these arguments meritless since the parties adequately discussed the stipulation in detail throughout their motion papers and the stipulation was in the court file along with the summary judgment motion papers. Furthermore, plaintiff waived the objection by not raising such objection in the trial court.⁷⁸

78 People v. Raley (1992) 2 Cal.4th 870, 892; People v. Saunders (1993) 5 Cal.4th 580, 589-590.

Plaintiff argues the probable cause stipulation is invalid because a stipulation to settle under section 664.6 must be signed by the party and plaintiff did not personally sign the stipulation. But the stipulation is not a stipulation settling a lawsuit or claim.

Furthermore, plaintiffs husband, acting as plaintiffs attorney, signed the stipulation on plaintiffs behalf, in plaintiffs presence, in court, and there is ample evidence in the record that plaintiff authorized him to do so and represented to the court and prosecutor that she had so stipulated.⁷⁹ In addition, plaintiff did not raise any objection in the lower court that she did not personally sign the stipulation and therefore the objection is waived on appeal.⁸⁰

79 People v. Williams (1963) 220 Cal.App.2d 108, 115.

80 People v. Raley, supra, 2 Cal.4th at page 892; People v. Saunders, supra, 5 Cal.4th at pages 589-590.

Plaintiffs other arguments challenging the validity of the probable cause stipulation are addressed and have been rejected in this opinion in connection with plaintiffs summary judgment appeal.

D. First Amendment Right to Petition for Legal Redress

Plaintiff argues that imposing fees and costs on plaintiff violates her constitutionally guaranteed rights under the First Amendment of the federal Constitution and article 1, section 3 of the California Constitution, to petition the government for redress of legitimate grievances, allegedly consisting of "police misconduct and government ineptitude." But "`the right to petition has never been absolute [citation], and `baseless litigation is not immunized by the First Amendment right to petition."⁸¹

81 Schroeder v. Irvine City Council (2002) 97 Cal.App.4th 174, 196, quoting Wolfgram v. Wells Fargo Bank (1997) 53 Cal.App.4th 43, 56 and Bill Johnsons Restaurants, Inc. v. NLRB (1983) 461 U.S. 731, 743 [103 S.Ct. 2161, 2170, 76 L.Ed.2d 277].

Furthermore, plaintiffs reliance on City of Long Beach v. Bozek ⁸² is misplaced. The California Supreme Court stated in Bozek that allowing peace officers and their public entity employer to recover attorneys fees and costs under section 1027.1 is a preferable remedy to an independent action for malicious prosecution, and awarding such fees and costs does not impermissibly chill the right to petition. According to Bozek, such an award of fees provides "an adequate deterrent to unwarranted lawsuits without unduly infringing upon the right of petition."⁸³

82 City of Long Beach v. Bozek (1982) 31 Cal.3d 527, 532, vacated 1983 459 U.S. 1095, and on remand reiterated by the California Supreme Court in City of Long Beach v. Bozek (1983) 33 Cal.3d 727.

83 City of Long Beach v. Bozek, supra, 31 Cal.3d at page 538; see also Schroeder v. Irvine City Council, supra, 97 Cal.App.4th at page 195.

Accordingly, we reject plaintiffs constitutional challenge.

III. DISPOSITION

Summary judgment is affirmed as to defendants City of Upland, Upland Police Department, Jeff Mendenhall, Liz Nutte, and Graham Hendrickson.

Summary judgment is reversed as to defendant officers Echevarria, Lines, Adams, and Thouvenell. As to these four defendants, we remand this action with directions to the trial court to vacate its order granting summary judgment and enter a new order granting summary adjudication as to each cause of action, with the exception of the seventh cause of action, in which summary adjudication shall be denied.

The trial courts order awarding fees and costs under section 1027.1 to the City of Upland, Upland Police Department, Jeff Mendenhall, Liz Nutte, and Graham Hendrickson is affirmed.

Since summary judgment is reversed as to officers Echevarria, Lines, Adams, and Thouvenell, and this action remains pending as to them, the trial court is instructed to vacate its order awarding fees and costs as to officers Echevarria, Lines, Adams, and Thouvenell. This does not preclude the trial court from awarding attorneys fees and costs to these defendants upon resolution of plaintiffs action against them.

Defendants are awarded their costs on appeal.

We Concur:

RAMIREZ P. J.

WARD J.