Venegas v. County of Los Angeles

130 Cal.Rptr.2d 461

105 Cal.App.4th 636

David VENEGAS et al., Plaintiffs and Appellants, v. COUNTY OF LOS ANGELES et al., Defendants and Respondents.

No. B148398.

Court of Appeal, Second District, Division 7.

December 23, 2002.

Rehearing Denied January 15, 2003.

As Modified January 22, 2003.

Review Granted April 16, 2003.

Robert Mann and Donald W. Cook, Los Angeles, for Plaintiffs and Appellants.

Franscell, Strickland, Roberts & Lawrence; and Cindy S. Lee for Defendants and Respondents County of Los Angeles, Michael Gray, Robert Harris and Thomas Jimenez.

Eduardo Olivo, City Attorney for the City of Vernon, and John J. Cardenas for Defendants and Respondents City of Vernon and Steven Wiles.

MUNOZ (AURELIO), J.^*

In this case involving a trial on claims for false arrest under state law and for unreasonable search and seizure under the federal Civil Rights Act, 42 U.S.C. section 1983 (section 1983), plaintiffs appeal from judgment in favor of defendants after the court granted defendants' motion for nonsuit. Plaintiffs challenge the grant of the motion for nonsuit, related evidentiary rulings, as well as pretrial orders sustaining demurrers and granting summary adjudication on plaintiffs' other related claims.

In a criminal prosecution, where there is a search or seizure issue, the trial court determines the issue of probable cause as a matter of law. (See People v. Lawler (1973) 9 Cal.3d 156, 160, 107 Cal.Rptr. 13, 507 P.2d 621; People v. Gorg (1955) 45 Cal.2d 776, 780, 291 P.2d 469.) However, in a 1983 action the duty to resolve conflicts in the evidence is for the jury to determine so that the issue of probable cause essentially becomes a jury question. (McKenzie v. Lamb (9th Cir. 1984) 738 F.2d 1005, 1007-1008.) Here, the trial court, rather than the jury, attempted to resolve those issues. This was error and we reverse. We also conclude the trial court erroneously sustained demurrers to several related counts.¹

FACTUAL AND PROCEDURAL BACKGROUND

We set out here the evidence presented during plaintiffs' case in chief at the jury trial, which evidence was the basis for the grant of the motion for nonsuit.

The Task Force for Regional Auto Theft Prevention (TRAP) was an interagency task force run by the County of Los Angeles Sheriffs Department to facilitate multijurisdictional theft investigations. Defendant Steven Wiles (Wiles), a police officer for defendant City of Vernon, was assigned to the southeast TRAP team on June 24, 1998. About 7:00 p.m., Wiles, the investigating officer on the scene, was in a staging area in Bellflower with other TRAP members, preparing to execute a search warrant for a residence about a block away; the residence was that of Ricardo Venegas, the older brother of plaintiff David Venegas. Wiles had been informed that Ricardo Venegas was involved in switching vehicle identification numbers (VINs) on stolen cars and fraudulently getting titles at the Temecula DMV. Wiles had a photograph of Ricardo Venegas and a description of him as 5 feet, 11 inches tall, and weighing 210 pounds.

A white 1989 Mercury Cougar with no license plates drove past the staging area; the car was driven by a woman, later identified as plaintiff Beatriz Venegas (Beatriz); a male passenger in the car, later identified as Beatriz's husband, David Venegas (Venegas), appeared to some TRAP officers to look like Ricardo Venegas. TRAP officers followed the car until it stopped at a gas station about a block away from the staging area. According to Wiles, Los Angeles County Sheriffs Deputies Michael Gray (Gray) and Robert Harris (Harris) were the first officers to arrive at the gas station and contact David Venegas. Gray testified that a 1989 Cougar is in the class of high theft automobiles.

According to Venegas, Beatriz was inside the gas station paying for the gas while he (Venegas) was standing outside the car pumping gas; two cars pulled up and blocked the Cougar; about four men in casual clothes, but with badges around their necks, approached him and asked him who he was and whether he knew a Ricardo Venegas; he told them Ricardo was his brother; other officers approached Beatriz when she came out of the gas station building and detained her apart from Venegas. Venegas admitted that he had a verbal argument with Harris, and then Harris and Deputy Thomas Jimenez (Jimenez) held him and handcuffed him.²

Wiles spoke with Venegas while other officers searched the Cougar for its VIN. In response to Wiles's questions about the Cougar, Venegas told him that he had just bought the car in Los Angeles; it was a salvaged vehicle; they had gone to the DMV, and were told that they had to go to the CHP to have a VIN issued. Officer Peloquin (Peloquin), from the Los Angeles Police Department, was Wiles's partner; Peloquin spent about 10 minutes looking for a public VIN on the Cougar and could find none; another officer was searching the glove box and under the seats of the car; Peloquin told Wiles that he had found a partial VIN on the car's engine. An officer gave Wiles documents found in the glove box—an odometer disclosure statement, a bill of sale, and a blank application for registration.³ The bill of sale and odometer disclosure statement listed Beatriz Venegas as the buyer, Service Fajardo in Long Beach as the seller, and the date of sale as June 7, 1998. According to the officers there was no federal permit or temporary sticker on the car; according to Venegas, Harris took the temporary permit off the back window of the car and the Venegases never got that permit back.

In cross-examination, Venegas testified that when they bought the car, the federal sticker was in the back window of the car, but several days before this incident, they had the back window tinted, so they took the sticker off the back window and put it in the front windshield. Venegas had testified in a prior deposition that at the time of the incident, the sticker was in the front window of the car. Beatriz testified that a paper permit or registration was in the front windshield.

After the officers learned the car had no public VIN, they decided to impound the car to determine whether it was stolen. According to Peloquin, the partial VIN on the engine matched the VIN as stated on the odometer disclosure statement, but that was not conclusive evidence for him that the car was not stolen because the engine and transmission could have been replaced. Venegas admitted to Wiles that he (Venegas) knew the public VIN was missing on the Cougar; he told Wiles that the person who sold the car to the Venegases told them it was a salvaged vehicle. Wiles testified that at that point he did not know whether the paperwork found in the vehicle was fraudulent or pertained to the Venegas's vehicle.

Although Beatriz had produced a California driver's license, Venegas had no California driver's license or California identification card in his possession.⁴ Venegas or Beatriz told the officers that Venegas had his identification at home, which was on Beach Avenue in Bellflower, about one and a half minutes away from the gas station. Wiles admitted that he knew within minutes that Venegas, who was only five feet, six inches tall, was not Ricardo Venegas. Other officers at the scene told Wiles they believed Venegas was Ricardo Venegas. Wiles asked Venegas to sign an entry and search waiver form so that officers could go and pick up his identification; at first Venegas refused to give consent, but then he gave verbal consent for the officers to accompany Beatriz to their home to retrieve his identification. The Venegases were told that the officers would not search their home. According to Wiles it was necessary to go to the Venegas home to obtain Venegas's identification; according to Wiles, a positive identification "is to be made through like a valid license where we can run the name through dispatch and find out who he is." Wiles admitted, however, that neither he nor any of the other officers ran Venegas's name through the computer system, even though they admittedly could have done so and found out whether the person described in the system fit the description of the person they had in front of them.

Wiles was at the gas station for about 10 to 15 minutes before his immediate supervisor told him to leave to serve the search warrant; Venegas was placed, still handcuffed, in the back of Harris's van. Wiles admitted that while at the gas station, Beatriz was not free to leave.

According to El Segundo Police Officer Rudy Kerkhof (Kerkhof), also assigned to the TRAP team that day, someone told him that the Venegases had consented to a search of their home; although he could not recall, it was possible that he was the one who obtained Beatriz's signature on a written entry and search waiver form, which had been filled in by another officer and handed to him.⁵ Kerkhof transported Beatriz to her home. According to Beatriz, the officers told her that she could not go into her home alone to retrieve her husband's identification; she signed the waiver form while she was in the police officer's car.

Beatriz retrieved Venegas's California identification card from their bedroom and brought it and Venegas's wallet out to the officer in the living room; the officer took Venegas's wallet from her and searched it. Two other police officers arrived at her home; Beatriz sat with Kerkhof on the couch in the living room while the other two officers searched their entire house; in the bedroom of their minor son Vincent, officers found a box where Venegas kept some papers indicating that Venegas was then on felony probation. While Venegas was sitting in the van with Harris, Harris got a radio call that the officers had verified his identification; Venegas admitted that he told Harris that he was on probation when they were sitting in the van.

About an hour after Wiles had left the gas station, he got a radio call from Harris informing him that they had gotten Venegas's...