1 Filed 10/22/14 Williams v. County of San Bernardino CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELL ATE DISTRICT DIVISION TWO

KARL JOHN WILLIAMS, Plaintiff and Appellant,

v. COUNTY OF SAN BERNARDINO et al., Defendants and Respondents. E057017 (Super.Ct.No . CIVRS1101825) OPINION

APPEAL from the Superior Court of Sa n Bernardino County. Barry L. Plotkin, Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed. David H. Ricks & Associations and Davi d H. Ricks for Plaintiff and Appellant. Jean-Rene Basle, County Counsel, and James H. Thebeau, Deputy County Counsel, for Defendants and Respondents. A sheriff’s deputy responde d to Karl Williams’s (plain tiff) residence in response to a 911 call about men fighting. Plaintiff became belligerent, refusing to comply with repeated directions and attempting to go inside the residence, so th e deputy used a Taser2 on plaintiff more than once, before taking him into custody for interfe ring with an officer. (Pen. Code, § 148, subd. (a)(1).) Plaintiff ev entually pled guilty to an infraction (Pen. Code, § 415), 1 filed a claim against the County of San Bernardino (the County), and then brought this action for violation of his civil rights pursuant to title 42 of the United States Code, section 1983, assault and battery, fa lse arrest or imprisonment, intentional infliction of emotional distress, violation of Civil Code secti ons 51.7 and 52.1, and negligence. The County and the deputy (colle ctively, defendants) first filed a motion for judgment on the pleadings, which resulted in di smissal of several of the causes of action without leave to amend, followed by a successful motion for summary judgment, disposing of the remainder of the complaint. Plaintiff appealed. On appeal, plaintiff argues, among other things, that his civil rights claims were not barred by his conviction on the infraction, that his government claim adequately presented all theories of liability, and that the deputy was not covered by qualified immunity. We affirm. BACKGROUND Because a motion for judgme nt on the pleadings perform s the same function as a general demurrer, attacking defects disclosed on the face of the pleadings or by matters subject to judicial notice, we accept as true the complaint’s factual allegations and give them a liberal construction. ( Burnett v. Chimney Sweep (2004) 123 Cal.App.4th 1057,

1 The change of plea form does not i ndicate to which subdivision of section 415 plaintiff entered his plea.3 1064-1065.) We also rely upon facts as adduced from the record before the superior court in reviewing the defendants’ summary judgment motion. On the evening of April 27, 2010, at approximately 9:30 p.m., Sheriff’s Deputy J. Tebbetts pulled his cruiser into the driveway of plaintiff’s residence, exited the vehicle, and approached the garage. Tebbetts was re sponding to an emergency 911 call reporting a fight between two males. Plaintiff was sit ting in the garage with his friend, Dan Cliff, watching television. The gara ge door was partially open, so Tebbetts bent down and informed plaintiff he had been dispatched to the lo cation in reference to a fight. Plaintiff informed Tebbetts that he a nd Cliff had been drinking. Tebbetts asked the two men to exit the ga rage. Cliff complied, but plaintiff was uncooperative. Plaintiff was in an agitated state and refused to co mply with Tibbetts’s commands to step out of the garage and away from areas that posed a danger to Tebbetts’s safety. 2 Plaintiff refused to produce iden tification despite being repeatedly asked. Plaintiff demanded that Tibbetts leave the property, a nd announced, in defiance of the deputy’s commands, that he was going insi de and that Tebbetts had no reason or right to be there. As plaintiff moved back, hi s body was in a “bladed position.” Given plaintiff’s conduct and poten tial access to weapons inside the residence, Tebbetts believed that plaintiff posed a threat to his safety.

2 Although plaintiff disputed that he wa s in an agitated state, the trial court reviewed the belt recording of the encounter and determined that pl aintiff’s version was at odds with the belt recorder.4 As plaintiff re-entered the garage, Tebbe tts unholstered his Taser, ordered plaintiff to step outside, and warned hi m that he would be tased if he did not comply. Plaintiff moved back inside the garage and in the directi on of the door to the interior of the house. Tebbetts deployed the Taser, which was ine ffective, and plaintiff continued to step backward away from the deputy. Plaintiff dire cted expletives at Tebbetts, and swiped his arm over his chest area, preventing the Taser from making proper contact. Tebbetts then deployed the Taser a second time, striking plai ntiff in his chest and abdomen. Plaintiff fell in front of the door leading into the house and removed the Taser probes from his chest, rendering the cycle ineffective. Tebbetts approached plaintiff and instruct ed him to roll over and place his hands behind his back multiple times. Plaintiff refused to put hi s hands behind his back. Plaintiff continued to resist, so Tebbetts threat ened to pepper spray him. Plaintiff finally rolled over onto his stomach, placing his hands behind his back. Tebbetts placed plaintiff under arrest for violation of Penal Code section 148, s ubdivision (a)(1), resisting, obstructing, or delaying a peace officer in the performance of his duty. On August 11, 2010, plaintiff filed a claim against the County of San Bernardino seeking damages based on the following circumstances: “C laimant Williams was inside his garage when he was approached by San Bernardino Co unty Sheriff Deputy J. Tebbetts. Without provoc ation and warning, Deputy J. Tebbetts discharges [ sic ] his Taser weapon at Mr. Williams, not once, but twice, resulting in significant physical injuries to Mr. Williams.” On September 7, 2010, the County reject ed plaintiff’s claim.5 On February 17, 2011, plaintiff filed a civil complaint agains t Deputy Tebbetts and his employer, the County, alleging seven causes of action: (1) Violation of civil rights (42 U.S.C § 1983); (2) assault; (3) ba ttery; (4) false arrest and imprisonment; (5) intentional infliction of emotional distress ; (6) violation of Civil Code sections 51.7, 52, and 52.1; and (7) negligence. 3 On June 9, 2011, plaintiff pled guilty to an infraction violation of Penal Code section 415, disturbing the peace, pursuant to a plea agreement. On July 6, 2011, de fendants answered the complain t, raising several affirmative defenses. On December 21, 20 11, the County and Tebbetts made a motion for judgment on the pleadings as to the first, fourth, fift h, sixth and seventh ca uses of action. The grounds for the motion included the fact that (a) the causes of action were barred by plaintiff’s subsequent convicti on arising from the subject arre st, (b) the County cannot be held vicariously liable for a civil rights violati on, (c) he failed to present all claims in his government tort claim, and (d) he failed to allege outrageous conduct for intentional infliction of emotional distress. In support of the motion, the Count y requested that the court take judicial notice of plaintiff’s plea of guilty to the infraction violation of Penal Code section 415, his government tort claim, and the notice of rejection of that claim by the County. On February 28, 2012, the trial court granted the motion fo r judgment on the pleadings as follows: as to the County, the motion was gr anted without leave to amend

3 The first, fourth, fifth, sixth and se venth causes of action were against all defendants; the second and third causes of action were directed to Tebbetts.6 as to the first, fourth, sixth and seventh caus es of action; as to Tebbetts, the motion was granted as to the fourth, sixth, and seventh causes of action, without leave to amend. As to Tebbetts, the motion was denied as to the first and fifth causes of action. 4 On March 16, 2012, defendants filed a mo tion for summary judgment as to the first (as to Tebbetts), s econd, and third causes of action (a s to all defendants). In support of the motion, the County submitted a tr anscript of the belt recording made contemporaneously with the incident, along w ith declarations of Tebbetts and Dan Cliff (plaintiff’s companion in the garage) and extracts from their deposition transcripts. On June 5, 2012, the court granted the motion for summary judgment as to the balance of the complaint. The trial court awarded costs to the defendants. On August 24, 2012, plaintiff appealed from the judgment. DISCUSSION 1. The Motion for Judgment on the Pleadi ngs as to Counts 4 through 7. Plaintiff challenges the order granting ju dgment on the pleadings, which resulted in dismissal without leave to amend counts 1 (civil rights violation as to the County only), 4 (false arrest/imprisonment), 5 (inten tional infliction of emotional distress), 6 (state civil rights violati ons, Civ. Code, §§ 51.7, 52, 52.1), and 7 (negligence).

4 At oral argument on the motion, the tr ial court also granted the motion as to Tebbetts on the fifth cause of action, althou gh that was not reflected in the minutes. The formal written order indicates that as to Te bbetts, the motion was al so granted as to the fifth cause of action.7 a. Standard of Review—Motion fo r Judgment on the Pleadings. Motions for judgment on the pleadings ma y be made on grounds that the court lacks jurisdiction of the subject of the cause of action, or the pleading does not state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 438, subd. (c)(1)(B); Protect Agricultural Land v. Stanislaus County Local Agen cy Formation Com. (2014) 223 Cal.App.4th 550, 556.) Such a motion performs the same function as a general demurrer, attacking only defects disclosed on the face of the pleadings or by matters that can be judicially noticed. ( Burnett v. Chimney Sweep (2004) 123 Cal.App.4th 1057, 1064.) The standard of review for a motion for judgment on the pleadings is the same as that for a demurrer. ( Leek v. Cooper (2011) 194 Cal.App.4th 399, 416.) We accept as true the complaint’s factual allegations a nd give them a liberal construction. ( Burnett v. Chimney Sweep , supra , 123 Cal.App.4th at p. 1065.) We also consider evidence outside the pleadings which the trial court considered without objection. ( Ibid ., citing Pomona College v. Superior Court (1996) 45 Cal.App.4th 1716, 1721; see also, Hood v. Santa Barbara Bank & Trust (2006) 143 Cal.App.4t h 526, 535.) We render our independent judgment on whether a cause of action ha s been stated and ar e not bound by the determination of the trial court. ( Burnett , at pp. 1064-1065.) b. Judgment on the Pleadings as to the First Cause of Action (County), and the Fourth Cause of Action (C ounty and Tebbetts) Were Proper. The trial court granted the motion for judg ment on the pleadings on the first cause of action for violation of plaintiff’s civil ri ghts (as to the County only), and the fourth8 cause of action for false arrest or imprisonm ent (both the County and Tebbetts). Plaintiff argues that the court erred in holding hi s claims were barred by the holdings of Heck v. Humphrey (1994) 512 U.S. 477 ( Heck ) and Yount v. City of Sacramento (2008) 43 Cal.4th 885, due to defendant’s plea to an infraction under Penal Code section 415. We disagree. A section 1983 action should be allowed to proceed only when the plaintiff’s action, even if successful, will not demonstrate the invalidity of any outstanding criminal judgment against the plaintiff. ( Yount v. City of Sacramento , supra, 43 Cal.4th at p. 896.) A plaintiff may not avoid the Heck bar merely by asserting a “t heoretical possibility” that the criminal conviction and the civil action could coexist. ( Okoro v. Callaghan (7th Cir. 2003) 324 F.3d 488, 490.) To prevail on a his section 1983 claim for false arrest and imprisonment, a plaintiff must demonstrate that there was no probable cause to arrest him. ( Cabrera v. City of Huntington Park (9th Cir. 1998) 159 F.3d 374, 380.) A conviction for disorderly conduct imp lies the existence of probable cause for arrest, which is fundamentally inconsistent with an indivi dual’s false arrest claim. ( Rosales v. City of Phoenix (D. Ariz. 1999) 202 F.Supp.2d 1055, 1059, citing Cabrera v. City of Huntington Park, supra, 159 F.3d at p. 380.) The same reasoning applies to a conviction for disturbing the peace. Thus, not being convicted of the charge fo r which a claimant has been arrested is not synonymous with a favorable termination. ( Lujano v. County of Santa Barbara (2010) 190 Cal.App.4th 801, 804-805, 808 [p laintiff was arrested for obstructing an investigation, placed on inform al probation pursuant to We lf. & Inst. Code, § 654, was9 barred from bringing action unde r 42 U.S.C. §1983 for false arrest, battery, negligence, intentional infliction of emotional distress, excessive force, and acts or omissions of public employees].) Under Heck , supra , 512 U.S. 477, in order to recover damages for allegedly unconstitutional conviction or im prisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sent ence invalid, a section 1983 plaintiff must prove that the conviction or sentence ha s been reversed on direct appeal. ( Heck , at pp. 486-487.) If a judgment for plaintiff on his section 1983 claim would necessarily imply the invalidity of his conviction, Heck bars a plaintiff from bringing a cause of action until his conviction is overturned. ( Cabrera v. City of Huntington Park , supra , 159 F.3d at p. 380.) However, a claim for exce ssive force in effectuating the arrest is not barred under Heck , because it does not imply the invalidity of the conviction

. ( Id. at pp. 380-381.) An arrestee’s claims that officers were unjustified in the use of force are inconsistent with a conviction for re sisting officers and are barred by Heck. ( Yount v. City of Sacramento , supra , 43 Cal.4th at p. 893.) A suspect’s resistance may justify the use of reasonable force in response. ( Id. at p. 898.) Thus, in order to recover damages for an unconstitutional conviction or imprison ment, or for other harm caused by actions whose unlawfulness would render a convic tion or sentence invalid, a section 1983 plaintiff must prove that the conviction or se ntence has been reversed on direct appeal, expunged by executive order, declared invalid by a tribunal author ized to make that determination, or called into question by the issuance of a writ of habeas corpus by a10 federal court. ( Lujano v. County of Santa Barbara , supra , 190 Cal.App.4th at p. 807, citing Yount , supra , 43 Cal.4th at pp. 893-894.) Although plaintiff pled guilty to a lesser offense, a judgment in his favor on the civil rights claim would necessarily imply the invalidity of the conviction, which flowed from the arrest. The action was barred, and the court properly granted judgment on the pleadings as to the first cause of action.

c. Failure to Comply With Govern ment Claim Statute Requirements. In the motion for judgment on the pleadings , defendants argued that all state law causes of action other than assault and ba ttery were barred by Government Code sections 910 and 911.2 for failing to spec ifically set forth factual circumstances corresponding to any other theories. The clai m merely alleged that Tebbetts had twice discharged his Taser at plaintiff. The trial c ourt found that there was significant variance between the allegations of his government to rt claim and the theories alleged in the complaint. Plaintiff claims this was error. We disagree. Government Code section 9 10 sets forth the necessary contents of a tort claim against a public entity, requiring that it state the date, place, and other circumstances of the occurrence or transaction which gave rise to the claim asserted and provide a “general description of the . . . injury, damage or lo ss incurred so far as it may be known at the time of presentation of the claim.” The fili ng of a proper claim pursuant to Government Code section 910 is a condition precedent to the maintenance of an action against the governmental entity ca used by tort. ( Donohue v. State of California (1986) 178 Cal.App.3d 795, 802.)11 The purpose of the claim statutes is to provide the pub lic entity sufficient information to enable it to adequately investigate and sett le claims, if appropriate, without the expense of litigation. ( Stockett v. Association of Cal. Water Agencies Joint Powers Ins. Authority (2004) 34 Cal. 4th 441, 446 ( Stockett ).) A claim need not contain the detail and specificity required of a pleading, but ne eds to fairly describe what the entity is alleged to have done. ( Ibid. , quoting Shoemaker v. Myers (1992) 2 Cal. App.4th 1407, 1426; Turner v. State of California (1991) 232 Cal.A pp.3d 883, 888.) A complaint’s fuller exposition of the factua l basis beyond that given in the claim is not fatal, so long as the complaint is not based on an entir ely different set of facts. ( Stockett , supra , 34 Cal.4th at p. 447, citing Stevenson v. San Francisco Housing Authority (1994) 24 Cal.App.4th 269, 278.) Howeve r, if a plaintiff relies on more than one theory of recovery against the governme ntal agency, each cause of action must have been reflected in a timely claim, and the f actual circumstances set forth in the written claim must correspond w ith the facts alleged in the complaint. ( Fall River Joint Unified School Dist. v. Superior Court (1988) 206 Cal.App.3d 431, 434; Donohue v. State of California, supra, 178 Cal.App.3d at pp. 802-803.) Further, where there has been a complete shif t in allegations, involving an effort to premise civil liability on acts or omissions co mmitted at different times or by different persons than those described in the claim, courts have found the complaint barred. ( Stockett , supra , 34 Cal.4th at p. 447, citing Blair v. Superior Court (1990) 218 Cal.App.3d 221, 226.) In other words, where the complaint merely elaborates or adds further detail to a claim, but is predicated on the same fundamental actions or failures to12 act by the defendants, courts have found the cl aim fairly reflects the facts pled in the complaint. ( Stockett , at p. 447, citing White v. Superior Court (1990) 225 Cal.App.3d 1505, 1510-1511.) Plaintiff argues that his claim was sufficient because it provided enough information for the pub lic entity to investigat e the claim, relying on Stockett , supra , 34 Cal.4th 441 and Castaneda v. Department of Corrections & Rehabilitation (2013) 212 Cal.App.4th 1051. However, in each of those cases, the causes of action set forth in the complaint were based on the same factual circumstances presented in the claim. In the present case, the acts described in the tort claim (that Tebbetts deployed his Taser twice without justification) does not allege facts that would inform the governmental entity of a civil rights violati on arising out of an unlawful detention or arrest, or false imprisonment. The deployment of the Taser, constituting assault, battery or excessive force, may be accomplished by an officer without detaining or arresting a suspect. As we read the language of the claim, Deputy Tebbetts simply approached plaintiff and tased him without provocation. The claim fails to mention that plaintiff was unlawfully detained or arrest ed or that his Fourth Amen dment right of privacy was violated. There are insufficient facts included in the claim to support the subsequent causes of action for false arrest/imprisonment, inte ntional infliction of emotional distress, violation of state civil rights, or negligence . An officer can discharge his Taser without detaining or arresting a suspec t, so the omission of those facts was fatal to plaintiff’s13 claim. The failure to comply with the government tort cl aims statutes bar those causes of action. d. Judgment on the Pleadings as to the Emotional Distress Claim was Properly Granted. Plaintiff argues that the court erred in gr anting judgment on the pleadings as to his cause of action for intentional infliction of emotional distress. We disagree. The elements of a prima facie case for the tort of intentional infliction of emotional distress are: (1) extreme and outr ageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. ( Christensen v. Superior Court (1991) 54 Cal.3d 868, 903, quoting Davidson v. City of Westminster (1982) 32 Cal.3d 197, 209.) Conduct, to be considered outrageous, must be so extreme as to exceed all bounds of that usually tolerated in a civilized society. ( Johnson v. Ralphs Grocery Co. (2012) 204 Cal.App.4th 1097, 1108.) Mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities are not su fficient for liability based on intentional infliction of emotional distress. ( Delfino v. Agilent Technologies, Inc. (2006) 145 Cal.App.4th 790, 809.) Further, the defendan t’s conduct must be intended to inflict injury or engaged in wi th the realization that injury will result. ( Hughes v. Pair (2009) 46 Cal.4th 1035, 1050.)14 The complaint alleged that defendant Te bbetts assaulted and battered plaintiff, falsely arrested and imprisoned him, and wrongfully deprived him of his civil rights. The complaint does not allege “extreme and outrageo us conduct with the intention of causing, or reckless disregard of the probability of cause, emotional distress,” nor does it allege that plaintiff suffered severe emotional distress. The motion for judgment on the pleadings was properly granted.

e. Judgment on the Pleadings Was Properly Granted as to the State Civil Rights Cause of Action. Plaintiff argues that the court erred in dismissing his cause of action based on violations of the Civil Code section 52.1. We disagree. Civil Code section 52.1, subdivision (b ) (also known as the Tom Banes Civil Rights Act, or the Bane Act), creates a pr ivate right of action for individuals whose exercise or enjoyment of rights secured by the Constitution or laws of the United States, or of rights secured by the Constitution or laws of this state, has been interfered with, or attempted to be interfered with, as described in Civil Code section 52.1, subdivision (a). The elements of the cause of action are th at the defendant must have interfered, by threats, intimidation, or coer cion, with the plaintiff’s exer cise of rights secured by the federal and state cons titutions or law. The essence of a Bane Act claim is that the defendant, by the specified improper means, tried to or did preven t the plaintiff from doing someth ing he or she had the right to do under the law or to fo rce the plaintiff to do something that he or she was not required to do under the law. ( Shoyoye v. County of Los Angeles (2012) 203 Cal.App.4th15 947, 955-956.) The statutory framework of s ection 52.1 reveals a legislative intent to address interference with constitutional right s involving more egregious conduct than mere negligence. ( Id. at p. 958.) Where an arrest is unlawful and excessive force is applied in making the arrest, there is coercion independent from the coercion inherent in the wrongful detention itself, which may give rise to a viol ation of the Bane Act. ( Bender v. County of Los Angeles (2013) 217 Cal.App.4th 968 , 978.) But there is no constituti onal right to resist arrest or to interfere with a p eace officer’s investigation of a 911 call. Here, plaintiff’s complaint does not allege that he had a constitutional right to interfere with the deputy’s inve stigation of the 911 call, or that he had a constitutional right to disturb the peace of his neighbors. His arrest is presumptively valid because it led to a guilty plea to a lesser offense pursuan t to a plea bargain, which has not been reversed. The deputy was authorized by st atute to use reasonable force in making the arrest. (Pen.Code, § 835a.) On the face of the complaint, there was no violation of the Bane Act. Plaintiff’s cause of action was properly dismissed on motion for judgment on the pleadings. f. The Motion for Judgment on the Pleadings Was Properly Granted as to the Negligence Cause of Action. Plaintiff argues the court improperly dism issed his cause of action for negligence against the County and Te bbetts. We disagree. Peace officers have a duty to act reas onably when using force, but the reasonableness of an officer’s conduct is de termined in light of the totality of the16 circumstances. ( Hayes v. County of San Diego (2013) 57 Cal.4th 622, 629.) To state a cause of action for negligence, the plaintiff must prove a legal duty to use due care, a breach of that duty, and that the breach was the proximate cause of the resulting injury. ( Hernandez v. City of San Jose (1993) 14 Cal.App.4th 129, 1 33.) Where a public entity is under a mandatory duty imposed by an enactm ent that is designed to protect against the risk of a particular kind of injury, the public entity is liable for any injury of that kind proximately caused by its failure to discha rge the duty unless it establishes it exercised reasonable diligence to di scharge the duty. ( MacDonald v. California (1991) 230 Cal.App.3d 319, 326-327.) An officer is justified in the use of reasona ble force to detain or arrest a suspect, prevent escape, or overcome re sistance, and need not desist in the face of resistance. (Pen. Code, § 835a; Burton v. Sanner (2012) 207 Cal.App.4th 12, 21.) The test of whether an officer was objec tively reasonable under all th e circumstances is highly deferential to the officer’s need to protect himself and others. ( Ibid. ) The statutory authorization to use reasonable force negates any inference that an officer has a duty to refrain from using force within the meani ng of Penal Code, section 835a. Further, plaintiff cites no authority for the propositio n that the use of reasonable force in detaining, arresting, preventing escape or overcoming resistance constitutes a breach of duty. The complaint alleges that defendants owed a duty not to use excessive force against him, and not to falsely arrest or impr ison him, which was brea ched to his damage. In opposition to the motion, and again on appeal, plaintiff cite d no authority for the17 proposition that the use of a Taser against a resistant suspect constitutes a breach of a duty of care where deadly for ce was not employed. Given the statutory authorization to use force, and the absence of allegations of the use of deadly forc e, the complaint does not properly plead a duty, or a breach of duty, of care. 2. The Order Granting Summary Judgme nt as to Counts 1 through 3. Plaintiff argues the trial court erred in granting summary judgment on the first three causes of action (civil rights viola tions, assault, and battery) based on its determination that the Coun ty was immune, and Tebbetts was protected by qualified immunity. We disagree.

a. Standard of Review Summary judgment is properly granted when there are no triable issues of material fact and the moving party is entitled to judgment as a matter of law. ( Conroy v. Regents of University of California (2009) 45 Cal.4th 1244, 1250; Code Civ. Proc., § 437c, subds. (b), (o).) A defendant meets his burde n of showing that a cause of action lacks merit if he shows that one or more elements of the cause of action cannot be established, or that there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (p)(2); Ortega v. Sacramento County Dept . of Health & Human Services (2008) 161 Cal.App.4th 713, 716.) The purpose of a motion for summary judgment is to discover whether the parties possess evid ence which requires the fact-weighing procedures of a trial. ( Soto v. County of Riverside (2008) 162 Cal.A pp.4th 492, 496, quoting City of Oceanside v. Superior Court (2000) 81 Cal.App.4th 269, 273.)18 We review the trial court’s decision de novo , considering all of the evidence the parties offered in connection with the moti on (except that which the court properly excluded) and the uncontradicted inferen ces the evidence reasonably supports. ( Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476, citing Artiglio v. Corning Inc. (1998) 18 Cal.4th 604, 612.) Because we review inde pendently, or de novo , the trial court’s stated reasons for granting summary judgment are not binding on us; we review the ruling, not the rationale. ( Soto v. County of Riverside, supra, 162 Cal.App.4th at p. 496; Kids’ Universe v. In2Labs (2002) 95 Cal.Ap p.4th 870, 878.) b. The County and Tebbetts Are Immune From Suit. The doctrine of qualified immunity protect s government officials from liability for civil damages unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was clearly established at the time of the challenged conduct. ( Wood v. Moss (2014) ___U.S.___ [134 S.Ct. 2056, 2067, 188 L.Ed.2d 1039].) Th e dispositive theory is whether it would have been clear to a reasonable officer that his conduct was unl awful in the situation confronted. ( Ibid. , citing Saucier v. Katz (2001) 533 U.S. 194, 202 [121 S.Ct. 2151, 150 L.Ed.2d 272].) Governmental actors are shielded from liab ility for civil damages if their actions did not violate clearly estab lished statutory or constitutiona l rights of which a reasonable person would have known. ( Hope v. Pelzer (2002) 536 U.S. 730, 741 [122 S.Ct. 2508, 153 L.Ed.2d 666.) The salient que stion is whether the state of the law at the time of an incident provided “fair warning” to the de fendants that their alleged conduct was unconstitutional. ( Ibid. )19 To determine whether an officer is en titled to qualified immunity for an unlawful arrest, a two part test is employed. First, a pplying the facts in the light most favorable to the plaintiff, we determine whether the depu ty violated the plai ntiff’s constitutional rights. ( Saucier v. Katz , supra , 533 U.S. at p. 201, overru led on a different point in Pearson v. Callahan (2009) 555 U.S. 223, 236 [129 S.Ct. 808, 172 L.Ed.2d 565].) Second, if we decide that a constitutional vi olation occurred, we determine whether the rights violated were “clearly established.” ( Draper v. Reynolds (11th Cir. 2004) 369 F.3d 1270, 1274-1275.) Here, plaintiff did not have a constitutional right to resist arrest or interfere with the deputy’s investigation of the 911 call re garding men fighting. Further, Tebbetts was authorized by statute to use reasonable force to detain or arrest plaintiff. As to the first cause of action for violation of title 42 of the United States Code, section 1983, we do not need to reach the second prong of the test for immunity b ecause the deputy violated no constitutional right of plaintiff in making the arrest. Turning to the assault and battery causes of action (excessive force), a claim that law enforcement officers used excessive fo rce is governed by the Fourth Amendment’s “reasonableness” standard. ( Plumhoff v. Rickard (2014) ___U.S.___ [134 S.Ct. 2012, 2020, 188 L.Ed.2d 1056]; Allgoewer v. City of Tracy (2012) 207 Cal.App.4th 755, 762.) The question is analyzed from th e perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. ( Plumhoff , at p. 2020.) The right to make an arrest or investigatory stop necessarily carri es with it the right to use some degree of physical coercion or threat to effect it. ( Saucier v. Katz , supra , 533 U.S. at p. 208.)20 In determining whether ex cessive force shocks the conscience, the court must determine whether the circumstances were such that actual deliberation by the officer is practical. ( Hayes v. County of San Diego (9th Cir. 2013) 736 F. 3d 1223, 1230.) The inquiry into whether a susp ect’s constitutional rights have been violated requires a balancing of the nature a nd quality of the intrusion on the individual’s Fourth Amendment interests against the governmental in terests alleged to justify the intrusion. ( Tolan v. Cotton (2014) ___ U.S. ___ [134 S.Ct . 1861, 1865, 188 L.Ed.2d 895; Graham v. Connor (1989) 490 U.S. 386, 396 [109 S. Ct. 1865, 104 L.Ed.2d 443].) The test for reasonableness involves several considerations: (1) the severity of the crime at issue; (2) whether th e suspect posed an immediate th reat to the safety of the officers or others, and (3) whether the suspec t was actively resisting arrest or attempting to evade arrest by flight. ( Graham v. Connor , supra , 490 U.S. at p. 396; Mattos v. Agarano (9th Cir. 2011) 661 F.3d 433, 441[discussing Graham ].) These factors are not exclusive, and we must consider the totality of circumstances. ( Gonzalez v. City of Anaheim (9th Cir. 2014) 747 F.3d 789, 794-795.) The most important factor is whether the suspect posed an imme diate threat to the safety of officers. ( Mattos , at p. 441.) A Taser employed in dart-mode constitute s an intermediate, significant level of force. ( Mattos v. Agarano , supra , 661 F.3d at p. 449.) However, Tasers carry a significantly lower risk of inju ry than physical forc e, such that the vast majority of individuals subjected to a Taser suffer no injury or only a mild injury. ( Hagans v. Franklin County Sheriff’s Office (6th Cir. 2012) 695 F.3d 505, 510.) Use of a Taser on a suspect who resisted arrest was justified in Hagans, despite the fact the suspect died,21 because it was not clearly established in Ma y 2007 (when the incident occurred) that using a Taser repeatedly on a suspect activ ely resisting arrest and refusing to be handcuffed amounted to excessive force. In Mattos v. Agarano , a pregnant woman was tased dur ing a traffic stop, in which she refused to sign a citation or exit her ca r. The Ninth Circuit determined that a constitutional violation had o ccurred, but nonetheless foun d the officer was entitled to qualified immunity because he did not violate cl early established law when he tased her. ( Mattos v. Agarano , supra , 661 F.3d at pp. 446-448.) More recent federal cases have recognized that the use of a Taser can, under certain circumstances, constitute excessive fo rce, depending on the factors present (the seriousness of the crime, whether the suspect was actively resisting arrest). ( GraveletBlondin v. Shelton (9th Cir. 2013) 728 F.3d 1 086, 1093, fn. 6, citing Shekleton v. Eichenberger (8th Cir. 2012) 677 F.3d 361, 366- 367 [tasing an unarmed suspected misdemeanant, who did not resist, did not thre aten the officer, did not attempt to run from him and did not behave aggressively, was excessive]; Cavanaugh v. Woods Cross City (10th Cir. 2010) 625 F.3d 661, 667 [court held police officer could not tase a nonviolent misdemeanant who did not pose a threat and wa s not resisting or evading arrest without first giving a warning]; Brown v. City of Golden Valley (8th Cir. 2009) 574 F.3d 491, 497 [tasing an individual who po sed a minimal safety threat and was not actively resisting arrest or attempting to flee was unconstitutional]; Oliver v. Fiorino (11th Cir. 2009) 586 F.3d 898, 906-908 [it was excessive to ta se suspect multiple times where he was immobilized after the first tasi ng].) However, we have found no cases holding that, as a22 matter of law, the use of a Taser to subdue a detainee constitutes, in all cases, a constitutional violation. Here, the officer was confronted with tw o individuals who ha d been drinking and who were reportedly engaged in a fight. One suspect complied with the officer’s directions by exiting the garage, but plain tiff became loud and belligerent, refused to comply with directions, and a ttempted to enter the residence, where the officer feared he would obtain a weapon after taking a “bladed” stance. Plaintiff was not merely passively resisting, and the 911 call of men figh ting is not a trivial violation. The officer did not violate clearly established law when he tased plaintiff, given the reasonable concern for officer safety unde r the circumstances, th e statute authorizing reasonable force to make an arrest, and the in termediate level of force represented by the Taser. As the United States Supreme Court cautioned in Graham v. Connor , we evaluate the reasonableness of the use of force from the perspective of the reasonable officer on the scene, rather th an with the 20/20 vision of hindsight. ( Graham v. Connor , supra , 490 U.S. at p. 396.) Under the circumstances, the deputy was entitled to qualified immunity. The trial court properly granted summa ry judgment in favor of defendants. DISPOSITION The judgment is affirmed. Defendants are awarded costs on appeal. NOT TO BE PUBLISHED IN OFFICIAL REPORTS RAMIREZ P. J.

We concur:23 HOLLENHORST J. MILLER J.