Background

Slowikowska and her husband live next to a popular beach in Encinitas. Their

house has a security camera that points toward the street and front driveway area. The

1 Slowikowska does not challenge the trial court's ruling with respect to her cause of action alleging the County has a custom and practice causing civil rights violations.

2 Because we construe the facts in the light most favorable to the party opposing summary judgment (see Faust v. California Portland Cement Co. (2007) 150 Cal.App.4th 864, 877), our summary of facts is based primarily on Slowikowska's declaration in opposition to defendants' motion. 2 property is surrounded by a wall that includes a wooden front gate door that locks from

the inside and a wooden sliding gate that is also secured from the inside.

On January 20, 2011, Slowikowska observed an unknown man leaning against the

wall on her driveway. She walked outside, opened the wooden sliding gate, and asked

the man what he was doing on her property. He explained he was doing a land survey,

but he was not wearing a uniform or name badge. In response to Slowikowska's request

that the man show some form of identification, she and the man walked together

toward his truck, which had no business signage. The man handwrote his name on the

back of a business card that had someone else's name printed on the front.

Slowikowska asked the man to leave and not return.

Slowikowska returned to her house through the wooden gate, locking it from the

inside. She noticed the man left a surveying rod on her driveway, so she went back

outside and unsuccessfully searched for him. She initially left the rod in her front yard

and went back inside, but had second thoughts about leaving the rod there. Slowikowska

retrieved the rod, put it in a shed behind her house "for safekeeping," and "secured" the

sliding gate from the inside as she returned to her house. A member of the surveying

crew called the sheriff's department to report the rod stolen.3

Deputy Abbott was dispatched in response to the surveying crew's call about the

rod. According to Slowikowska, she first learned of Abbott's response as he was

"physically coming into my sliding glass door" and "enter[ing] into my private property

3 The record indicates the rod has an estimated value of $1,000. 3 and residence without my permission or consent." She surmised he "had done something

to 'jimmy' the lock on [the] front gate to get into the property." Slowikowska began

explaining what happened and walked with Abbott to the driveway, bringing her cordless

phone with her.

When Abbott asked Slowikowska about the rod, she said she would retrieve it

when her husband got home. She dialed her husband's phone number, but Abbott

grabbed the phone from her hand, set it on the ground, and grabbed her arm to detain her,

warning that if she did not return the rod he would arrest her for felony grand theft.

Slowikowska agreed to return the rod, so Abbott let go of her arm. As she led him to the

shed where she had placed the rod, Abbott "continually pushed [her] by placing his hand

against [her] back as [they] walked in the walkway." When Slowikowska retrieved the

rod from the shed, Abbott took it from her and left the property.

Complaint

Slowikowska's operative first amended complaint asserts federal civil rights

violations for "excessive force," "custom and practice causing violation of . . . civil

rights," and "false arrest—including unreasonable search and seizure." (Capitalization

omitted.)

Summary Judgment

Defendants moved for summary judgment or, in the alternative, summary

adjudication. As relevant here, they supported their motion with excerpts from

Slowikowska's and Abbott's depositions and a video taken by Slowikowska's security

camera which captured Abbott's interactions with Slowikowska on the driveway.

4 In his deposition, Abbott stated he did not believe the front gate was locked, but

acknowledged it "was stuck a little bit so [he] shook it . . . and it opened, not with any

force." He admitted he did not have permission to enter because "[t]here was no one

there to give [him] permission." Abbott saw Slowikowska through a glass door of the

house and knocked. When she answered the door, he introduced himself and asked about

the surveying rod. Slowikowska asked Abbott, " 'How did you get in [the yard]? The

door is locked.' " Abbott responded he did not know it was locked because it opened

when he tried to open it. He denied ever entering the house.

Abbott said he walked with Slowikowska to the driveway, where she explained

her side of the story. She acknowledged taking the rod because it was left on her private

property, and she refused to return it. Abbott told her she had committed a felony. When

she then attempted to use her phone, Abbott took it from her hand, told her he was going

to detain her, and began gently putting her arms behind her back to handcuff her.4

Slowikowska offered to return the rod and Abbott let go of her. She led Abbott to the

shed, retrieved the rod, and gave it to him. Abbott returned the rod to the surveying crew,

who were satisfied to have it returned. Abbott did not arrest Slowikowska. He denied

ever entering her house or touching her other than when he took her phone and began

placing her hands behind her back.

4 Abbott explained he took the phone from Slowikowska because "if you get family members more involved [when someone is being detained], a lot of times it has a potential to get more volatile, and people get angry and try to intervene . . . ." 5 In opposition to defendants' summary judgment motion, Slowikowska lodged

(among other things) her own declaration, excerpts from her deposition, excerpts from

Abbott's deposition, and a declaration from Jack Smith, whom she tendered as an expert

on police tactics. Regarding her false arrest/unreasonable search and seizure cause of

action, Slowikowska stated that despite her securing the gate from inside, Abbott was

somehow able to " 'jimmy' " it open and walk into the yard. He then entered her house

without her permission and controlled her movements.

Regarding excessive use of force, Slowikowska argued that because Abbott had

unlawfully detained her, any use of force was excessive. She also stated Abbott

"abruptly, violently and aggressively ripped the phone out of [her] right hand"; "violently

and aggressively grabbed, pulled and twisted [her] left hand towards the ground with his

left hand" in a "twisting motion that torqued [her] body from [her] right to left," causing

her to trip and "suffer an injury to [her] knee, ankle, shoulder and wrist"; "twisted [her]

arm and [her] leg"; and "continually pushed [her] by placing his hand against [her] back

as [they] walked" to the shed to retrieve the rod.

Slowikowska cited Abbott's deposition testimony acknowledging he entered her

property without permission, without a search warrant, without being in hot pursuit, and

without having observed anyone commit a crime.

Smith's declaration recited his extensive law enforcement career and opined (1)

Abbott unlawfully detained Slowikowska and, therefore, any use of force was excessive;

(2) Abbott's use of force was also objectively unreasonable; (3) Abbott violated

Department policy by failing to report his use of force to a supervisor after the incident;

6 and (4) the Department ratified Abbott's omission by failing to discipline him for it,

"illustrat[ing] a common practice and scheme which violates . . . civil rights . . . ."

Defendants objected to Smith's declaration, and the trial court sustained their objection.

The trial court granted summary judgment in defendants' favor. The court found

there were no triable issues of fact with respect to the lawfulness of the detention, use of

force, or Department policy or practice. Because the court found there was no

constitutional violation, the court concluded defendants were also entitled to qualified

immunity. The court entered judgment in defendants' favor, and Slowikowska appealed.

DISCUSSION

I.

Summary Judgment Principles

A defendant moving for summary judgment "bears the burden of persuasion that

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

a matter of law." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850

(Aguilar).) To meet this burden, the defendant must show one or more elements of the

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

action. (Ibid.) If the defendant does not present sufficient evidence to meet its initial

burden, the court must deny the summary judgment motion. (Ibid.)

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

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

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

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

exists. (Ibid.)

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

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

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

summary judgment." (Lenane v. Cont'l Mar. of San Diego (1998) 61 Cal.App.4th 1073,

1079.) Thus, we apply the same three-step analysis trial courts use: "First, we identify

the issues framed by the pleadings. Second, we determine whether the moving party has

established facts justifying judgment in its favor. Finally, in most cases, if the moving

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

demonstrated the existence of a triable issue of material fact." (Serri v. Santa Clara

University (2014) 226 Cal.App.4th 830, 858-859.) In doing so, "[w]e liberally construe

the evidence in support of the party opposing summary judgment and resolve doubts

concerning the evidence in favor of that party." (Wilson v. 21st Century Ins. Co. (2007)

42 Cal.4th 713, 717.) Because "[s]ummary judgment is a drastic measure that deprives

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

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

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

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

If a trial court erroneously grants summary judgment when a factual dispute exists

but affects fewer than all causes of action, the appellate court may direct the trial court to

enter an order granting summary adjudication of the unaffected causes of action so long

8 as the moving party alternatively moved for summary adjudication of them. (See Code

Civ. Proc., § 437c, subd. (f)(2); Troyk v. Farmers Group, Inc. (2009) 171 Cal.App.4th

1305, 1354-1355.)

II.

False Arrest/Unreasonable Search and Seizure

Slowikowska contends the trial court erred by finding in defendants' favor on her

false arrest/unreasonable search and seizure claim because factual disputes exist

regarding whether Abbott unlawfully entered her house or curtilage.5 Although the

parties devote much of their briefing to whether Abbott's entry into the yard constituted

an unauthorized entry into the curtilage, we need not resolve this issue because a triable

issue of fact exists regarding Abbott's entry into Slowikowska's house.6 This dispute

precludes summary judgment of the complaint and summary adjudication of this cause of

5 "At common law, the curtilage is the area to which extends the intimate activity associated with the 'sanctity of a man's home and the privacies of life,' [citation], and therefore has been considered part of the home itself for Fourth Amendment purposes. Thus, courts have extended Fourth Amendment protection to the curtilage; and they have defined the curtilage, as did the common law, by reference to the factors that determine whether an individual reasonably may expect that an area immediately adjacent to the home will remain private." (Oliver v. United States (1984) 466 U.S. 170, 180.)

6 In any event, the record is not sufficiently developed to enable us to consider all the curtilage factors the United States Supreme Court has articulated. (See U.S. v. Dunn (1987) 480 U.S. 294, 301 ["we believe that curtilage questions should be resolved with particular reference to four factors: the proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by."], italics added.) 9 action. Of note, defendants' briefing does not address the factual dispute regarding

Abbott's entry into Slowikowska's house.

The Fourth Amendment protects against unreasonable searches and seizures.7 "It

is a 'basic principle of Fourth Amendment law' that searches and seizures inside a home

without a warrant are presumptively unreasonable." (Payton v. New York (1980) 445

U.S. 573, 586.) "The same proscription limiting warrantless arrests in the home has been

extended to detentions that fall short of formal arrests." (People v. Lujano (2014) 229

Cal.App.4th 175, 182.) "The presumption of unreasonableness that attaches to a

warrantless entry into the home 'can be overcome by a showing of one of the few

"specifically established and well-delineated exceptions" to the warrant requirement

[citation], such as " 'hot pursuit of a fleeing felon, or imminent destruction of

evidence, . . . or the need to prevent a suspect's escape, or the risk of danger to the police

or to other persons inside or outside the dwelling' " [citation].' . . ." (People v. Thompson

(2006) 38 Cal.4th 811, 817-818.)

Slowikowska's third cause of action alleges defendants violated her civil rights

when Abbott (1) detained or arrested her without reasonable suspicion or probable cause,

and (2) entered her premises. Defendants' summary judgment motion (1) explained why

Abbott had sufficient reasonable suspicion to detain Slowikowska, and (2) relied on his

7 "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." (U.S. Const., 4th Amend.) 10 account that he "contacted [Slowikowska] at the [front] door of the home." In opposition,

however, Slowikowska disputed Abbott's version of events and unequivocally stated he

not only entered her locked, enclosed yard, but also entered her house without a warrant

or consent and controlled her movements. She lodged portions of Abbott's deposition

testimony wherein he admitted he entered her property without consent, without a

warrant, without being in hot pursuit, and without having seen someone commit a crime.

Crediting Slowikowska's testimony, as we must on summary judgment, she created a

factual dispute regarding whether Abbott unlawfully entered her house in violation of the

Fourth Amendment. Thus, regardless of the curtilage issue, the factual dispute

concerning Abbott's entry into Slowikowska's house without a warrant or exigent

circumstances precludes summary judgment or adjudication. (See, e.g., People v.

Lujano, supra, 229 Cal.App.4th at p. 187; McCaskey v. California State Automobile

Assn. (2010) 189 Cal.App.4th 947, 975 ["If a cause of action is not shown to be barred in

its entirety, no order for summary judgment—or adjudication—can be entered."]; Code

Civ. Proc., § 437c, subd. (f)(1).)

III.

Excessive Force

Slowikowska contends the trial court erred by summarily disposing of her

excessive force claim because factual disputes exist regarding Abbott's use of force while

initially detaining her on the driveway and while escorting her to retrieve the survey rod.

We disagree.

11 "The Fourth Amendment's prohibition on 'unreasonable . . . seizures' protects

individuals from excessive force in the context of an arrest or seizure." (Thompson v.

County of Los Angeles (2006) 142 Cal.App.4th 154, 164 (Thompson), quoting U.S.

Const., 4th Amend.; see Graham v. Connor (1989) 490 U.S. 386, 394 (Graham).)

"Claims that the amount of force used during an arrest or seizure was excessive are

analyzed under the objective reasonableness standard of the Fourth Amendment."

(Thompson, at p. 164; see Graham, at p. 395.)

"Determining whether the force used to effect a particular seizure is 'reasonable'

under the Fourth Amendment requires a careful balancing of ' "the nature and quality of

the intrusion on the individual's Fourth Amendment interests" ' against the countervailing

governmental interests at stake. [Citation.] Our Fourth Amendment jurisprudence has

long recognized that the right to make an arrest or investigatory stop necessarily carries

with it the right to use some degree of physical coercion or threat thereof to effect it.

[Citation.] Because '[t]he test of reasonableness under the Fourth Amendment is not

capable of precise definition or mechanical application,' [citation], however, its proper

application requires careful attention to the facts and circumstances of each particular

case, including the severity of the crime at issue, whether the suspect poses an immediate

threat to the safety of the officers or others, and whether he is actively resisting arrest or

attempting to evade arrest by flight." (Graham, supra, 490 U.S. at p. 396.)

"The 'reasonableness' of a particular use of force must be judged from the

perspective of a reasonable officer on the scene, rather than with the 20/20 vision of

hindsight." (Graham, supra, 490 U.S. at p. 396.) " 'Not every push or shove, even if it

12 may later seem unnecessary in the peace of a judge's chambers,' [citation], violates the

Fourth Amendment. The calculus of reasonableness must embody allowance for the fact

that police officers are often forced to make split-second judgments—in circumstances

that are tense, uncertain, and rapidly evolving—about the amount of force that is

necessary in a particular situation." (Id. at p. 397.) Because the balancing required by

Graham "nearly always requires a jury to sift through disputed factual contentions, and to

draw inferences therefrom . . . , summary judgment . . . in excessive force cases should be

granted sparingly." (Santos v. Gates (9th Cir. 2002) 287 F.3d 846, 853.)

We first dispose of Slowikowska's primary argument below—that because

"Abbott's arrest of [her] was unjustified and unlawful, any use of force against her was

excessive." " '[T]he excessive force and false arrest factual inquiries are distinct.' "

(Velazquez v. City of Long Beach (9th Cir. 2015) 793 F.3d 1010, 1024.) Therefore,

merely establishing an unlawful arrest "does not establish an excessive force claim, and

vice-versa.' " (Ibid.) Every federal appellate court that has considered the argument

Slowikowska advances here has rejected it. (Id. at p. 1024, fn. 13; see, e.g., Snell v. City

of York (3d Cir. 2009) 564 F.3d 659, 672 [rejecting as an "effort[] to bootstrap excessive

force claims and probable cause challenges" the contention "that the force applied was

excessive solely because probable cause was lacking for [plaintiff's] arrest."]; Freeman v.

Gore (5th Cir. 2007) 483 F.3d 404, 417 ["That the deputies' arrest of [plaintiff] was

unlawful on the facts alleged does not, however, mean that any force used by the deputies

to effectuate the arrest was necessarily excessive. Rather, [plaintiff]'s excessive force

claim is separate and distinct from her unlawful arrest claim, and we must therefore

13 analyze the excessive force claim without regard to whether the arrest itself was

justified."]; Bashir v. Rockdale County (11th Cir. 2006) 445 F.3d 1323, 1332 ["When

properly stated, an excessive force claim presents a discrete constitutional violation

relating to the manner in which an arrest was carried out, and is independent of whether

law enforcement had the power to arrest."].)

Turning to Abbott's conduct in taking Slowikowska's phone and detaining her on

the driveway, we agree that as a matter of law Abbott did not use excessive force. He

had been informed that a woman in Slowikowska's house stole someone else's surveying

rod valued at $1,000; Slowikowska admitted it was she; and she refused to promptly

return the rod to its owners. On this record, Slowikowska cannot credibly argue Abbott

lacked probable cause to detain and/or arrest her. Therefore, Abbott was entitled to use

reasonable force in doing so. (See Graham, supra, 490 U.S. at p. 396.)

Although Abbott and Slowikowska's dispute about the force used on the driveway

would ordinarily preclude a legal determination of the excessive force claim, here

security camera footage enables us to make such a finding. While Slowikowska asserts

Abbott "violently and aggressively" took her phone and twisted her arm and leg in a

manner that "torqued" her body, and that she "tripped and got up," the video evidence

belies these statements. The video shows Abbott take the phone out of Slowikowska's

right hand with his left hand; place the phone in his right hand; grab her left arm with his

left hand; lean over and gently set the phone on the ground; stand upright; release

Slowikowska's hand; and begin walking with Slowikowska toward the house. This entire

14 exchange lasts less than 10 seconds and clearly shows there was nothing violent or

aggressive about the force Abbott used.

Under similar circumstances, the United States Supreme Court ruled that "[w]hen

opposing parties tell two different stories, one of which is blatantly contradicted by the

record, so that no reasonable jury could believe it, a court should not adopt that version of

the facts for purposes of ruling on a motion for summary judgment." (Scott v. Harris

(2007) 550 U.S. 372, 380 [disregarding plaintiff's characterization of his driving while

evading police where it was "utterly discredited" by police dashboard camera]; see Weldy

v. Hatch (5th Cir. 2012) 481 Fed.Appx. 119, 123 ["where, as here, we have a videotape,

the validity of which is not questioned, we do not need to rely on parties' subjective

construction of events"].) This approach was justified here, where Slowikowska's own

security camera footage "utterly discredited" her characterization of her encounter with

Abbott. (Scott v. Harris, at p. 380.)

We similarly agree that even if Abbott "plac[ed] his hand against [Slowikowska's]

back as [they] walked in the walkway" to retrieve the surveying rod, this does not

constitute excessive force as a matter of law. As noted, Abbott lawfully detained

Slowikowska while he investigated her possible commission of a felony. Exercising his

discretion, he gave her the option of returning the surveying rod instead of being arrested.

When Slowikowska elected to return the rod, Abbott was entitled to continue using

reasonable force to maintain control over Slowikowska through the conclusion of the

detention to ensure his own safety and to ensure she returned the surveying rod

expeditiously and did nothing to interfere, such as calling her husband or locking the gate

15 behind her. The record does not support a conclusion that Abbott's alleged use of force

under these circumstances was excessive.

IV.

Qualified Immunity

Slowikowska contends the trial court also erred by finding Abbott was entitled to

qualified immunity. We conclude the factual dispute regarding whether Abbott entered

Slowikowska's house precludes summary disposition of his qualified immunity defense

to her false arrest/unreasonable search and seizure claim. However, we conclude the trial

court properly found Abbott was entitled to qualified immunity on her excessive force

claim.

"Qualified immunity is 'an entitlement not to stand trial or face the other burdens

of litigation.' " (Saucier v. Katz (2001) 533 U.S. 194, 200 (Saucier).) "The privilege is

'an immunity from suit rather than a mere defense to liability . . . ." (Ibid.) "Determining

whether an official is entitled to summary judgment based on the affirmative defense of

qualified immunity requires applying a three-part test. First, the court must ask whether

'[t]aken in the light most favorable to the party asserting the injury, [ ] the facts alleged

show the officer's conduct violated a constitutional right?' If the answer is no, the officer

is entitled to qualified immunity. If the answer is yes, the court must proceed to the next

question: whether the right was clearly established at the time the officer acted. That is,

'whether it would be clear to a reasonable officer that his conduct was unlawful in the

situation he confronted.' If the answer is no, the officer is entitled to qualified immunity.

If the answer is yes, the court must answer the final question: whether the officer could

16 have believed, 'reasonably but mistakenly . . . that his or her conduct did not violate a

clearly established constitutional right.' If the answer is yes, the officer is entitled to

qualified immunity. If the answer is no, he is not." (Skoog v. County of Clackamas (9th

Cir. 2006) 469 F.3d 1221, 1229, fns. omitted.)

A. False Arrest/Unreasonable Search and Seizure

Slowikowska opposed defendants' motion with evidence that Abbott violated her

Fourth Amendment rights by entering her house without a warrant (or applicable

exception to the warrant requirement). This right was clearly established. (See Hopkins

v. Bonvicino (9th Cir. 2009) 573 F.3d 752, 774.) Abbott does not argue he entered

Slowikowska's house under the reasonably mistaken belief he was permitted to do so;

rather, he denies altogether that he ever entered the house. Because defendants

introduced no evidence showing Abbott had a reasonably mistaken belief he was allowed

to enter Slowikowska's house, defendants did not meet their burden of establishing they

were entitled to qualified immunity on this claim.

B. Excessive Force

Because we concluded in part III, ante, that Abbott did not use excessive force,

Slowikowska's challenge to his qualified immunity defense fails at the first step—

whether "the officer's conduct violated a constitutional right." (See Skoog v. County of

Clackamas, supra, 469 F.3d at p. 1229.) Because "the answer is no, the officer is entitled

to qualified immunity.' " (Ibid.)

17

DISPOSITION

The judgment is reversed. The matter is remanded with directions that the trial

court vacate its order granting defendants' motion for summary judgment and enter a new

order granting the defendants' motion for summary adjudication of Slowikowska's first

cause of action for excessive force and second cause of action for having a custom and

practice causing violations of civil rights. All parties are to bear their own costs on

appeal.

HALLER, Acting P. J.

WE CONCUR:

O'ROURKE, J.

IRION, J.

18