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NOT TO BE PUBLISHED IN OFFICIAL REPORTS 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 APPELLATE 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 San 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 David 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 responded to Karl Williams’s (plaintiff) 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 the deputy used a Taser 
2 

on plaintiff more than once, before taking him into custody for interfering with an officer. 

(Pen. Code, § 148, subd. (a)(1).) Plaintiff eventually 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, false arrest or imprisonment, intentional 

infliction of emotional distress, violation of Civil Code sections 51.7 and 52.1, and 

negligence. The County and the deputy (collectively, defendants) first filed a motion for 

judgment on the pleadings, which resulted in dismissal 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 judgment on the pleadings performs 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 indicate 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 responding to an emergency 911 call reporting 

a fight between two males. Plaintiff was sitting in the garage with his friend, Dan Cliff, 

watching television. The garage door was partially open, so Tebbetts bent down and 

informed plaintiff he had been dispatched to the location in reference to a fight. Plaintiff 

informed Tebbetts that he and Cliff had been drinking. 

Tebbetts asked the two men to exit the garage. Cliff complied, but plaintiff was 

uncooperative. Plaintiff was in an agitated state and refused to comply 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 identification despite being repeatedly 

asked. Plaintiff demanded that Tibbetts leave the property, and announced, in defiance of 

the deputy’s commands, that he was going inside and that Tebbetts had no reason or right 

to be there. As plaintiff moved back, his body was in a “bladed position.” Given 

plaintiff’s conduct and potential access to weapons inside the residence, Tebbetts 

believed that plaintiff posed a threat to his safety. 

 2 Although plaintiff disputed that he was in an agitated state, the trial court 

reviewed the belt recording of the encounter and determined that plaintiff’s version was 

at odds with the belt recorder. 
4 

As plaintiff re-entered the garage, Tebbetts unholstered his Taser, ordered plaintiff 

to step outside, and warned him that he would be tased if he did not comply. Plaintiff 

moved back inside the garage and in the direction of the door to the interior of the house. 

Tebbetts deployed the Taser, which was ineffective, and plaintiff continued to step 

backward away from the deputy. Plaintiff directed 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 plaintiff 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 instructed him to roll over and place his hands 

behind his back multiple times. Plaintiff refused to put his hands behind his back. 

Plaintiff continued to resist, so Tebbetts threatened 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, subdivision (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: “Claimant Williams was inside 

his garage when he was approached by San Bernardino County Sheriff Deputy 

J. Tebbetts. Without provocation 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 rejected plaintiff’s claim. 
5 

On February 17, 2011, plaintiff filed a civil complaint against 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) battery; (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, defendants answered the complaint, raising several affirmative 

defenses. On December 21, 2011, the County and Tebbetts made a motion for judgment 

on the pleadings as to the first, fourth, fifth, sixth and seventh causes of action. The 

grounds for the motion included the fact that (a) the causes of action were barred by 

plaintiff’s subsequent conviction arising from the subject arrest, (b) the County cannot be 

held vicariously liable for a civil rights violation, (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 County 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 for judgment on the 

pleadings as follows: as to the County, the motion was granted without leave to amend 

 3 The first, fourth, fifth, sixth and seventh 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 causes 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 motion for summary judgment as to the 

first (as to Tebbetts), second, and third causes of action (as to all defendants). In support 

of the motion, the County submitted a transcript of the belt recording made 

contemporaneously with the incident, along with 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 Pleadings as to Counts 4 through 7. 

Plaintiff challenges the order granting judgment 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 (intentional infliction of emotional distress), 6 

(state civil rights violations, Civ. Code, §§ 51.7, 52, 52.1), and 7 (negligence). 

 4 At oral argument on the motion, the trial court also granted the motion as to 

Tebbetts on the fifth cause of action, although that was not reflected in the minutes. The 

formal written order indicates that as to Tebbetts, the motion was also granted as to the 

fifth cause of action. 
7 

a. Standard of Review—Motion for Judgment on the Pleadings.

Motions for judgment on the pleadings may 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 Agency 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 and 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.4th 526, 535.) We render our independent 

judgment on whether a cause of action has been stated and are 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 (County and Tebbetts) Were Proper.

 The trial court granted the motion for judgment on the pleadings on the first cause 

of action for violation of plaintiff’s civil rights (as to the County only), and the fourth 
8 

cause of action for false arrest or imprisonment (both the County and Tebbetts). Plaintiff 

argues that the court erred in holding his 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 “theoretical 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 implies the existence of probable cause for 

arrest, which is fundamentally inconsistent with an individual’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 for 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 [plaintiff was arrested for obstructing an 

investigation, placed on informal probation pursuant to Welf. & Inst. Code, § 654, was 
9 

barred from bringing action under 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 imprisonment, or for other harm caused by actions whose 

unlawfulness would render a conviction or sentence invalid, a section 1983 plaintiff must 

prove that the conviction or sentence has 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 excessive 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 resisting 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 imprisonment, or for other harm caused by actions 

whose unlawfulness would render a conviction or sentence invalid, a section 1983 

plaintiff must prove that the conviction or sentence has been reversed on direct appeal, 

expunged by executive order, declared invalid by a tribunal authorized to make that 

determination, or called into question by the issuance of a writ of habeas corpus by a 
10 

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 Government Claim Statute Requirements.

In the motion for judgment on the pleadings, defendants argued that all state law 

causes of action other than assault and battery were barred by Government Code 

sections 910 and 911.2 for failing to specifically set forth factual circumstances 

corresponding to any other theories. The claim merely alleged that Tebbetts had twice 

discharged his Taser at plaintiff. The trial court found that there was significant variance 

between the allegations of his government tort claim and the theories alleged in the 

complaint. Plaintiff claims this was error. We disagree. 

Government Code section 910 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 loss incurred so far as it may be known at the 

time of presentation of the claim.” The filing of a proper claim pursuant to Government 

Code section 910 is a condition precedent to the maintenance of an action against the 

governmental entity caused 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 public entity sufficient 

information to enable it to adequately investigate and settle 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 needs 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.App.3d 883, 888.) 

A complaint’s fuller exposition of the factual basis beyond that given in the claim 

is not fatal, so long as the complaint is not based on an entirely 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.) However, if a plaintiff relies on more than 

one theory of recovery against the governmental agency, each cause of action must have 

been reflected in a timely claim, and the factual circumstances set forth in the written 

claim must correspond with 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 shift in allegations, involving an effort to 

premise civil liability on acts or omissions committed 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 to 
12 

act by the defendants, courts have found the claim 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 public entity to investigate 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 violation 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 arrested or that his Fourth Amendment right of privacy was 

violated. 

There are insufficient facts included in the claim to support the subsequent causes 

of action for false arrest/imprisonment, intentional infliction of emotional distress, 

violation of state civil rights, or negligence. An officer can discharge his Taser without 

detaining or arresting a suspect, so the omission of those facts was fatal to plaintiff’s 
13 

claim. The failure to comply with the government tort claims 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 granting 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 outrageous conduct by the defendant with the 

intention of causing, or reckless disregard of the probability of causing, emotional 

distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual 

and proximate causation of the emotional distress by the defendant’s outrageous conduct. 

(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 sufficient for liability based on intentional 

infliction of emotional distress. (Delfino v. Agilent Technologies, Inc. (2006) 145 

Cal.App.4th 790, 809.) Further, the defendant’s conduct must be intended to inflict 

injury or engaged in with the realization that injury will result. (Hughes v. Pair (2009) 46 

Cal.4th 1035, 1050.) 
14 

The complaint alleged that defendant Tebbetts assaulted and battered plaintiff, 

falsely arrested and imprisoned him, and wrongfully deprived him of his civil rights. The 

complaint does not allege “extreme and outrageous 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 private 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 that the defendant must have interfered, by 

threats, intimidation, or coercion, with the plaintiff’s exercise of rights secured by the 

federal and state constitutions or law. 

The essence of a Bane Act claim is that the defendant, by the specified improper 

means, tried to or did prevent the plaintiff from doing something he or she had the right 

to do under the law or to force 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.4th 
15 

947, 955-956.) The statutory framework of section 52.1 reveals a legislative intent to 

address interference with constitutional rights 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 violation of the Bane Act. (Bender v. County of Los Angeles 

(2013) 217 Cal.App.4th 968, 978.) But there is no constitutional right to resist arrest or 

to interfere with a peace 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 investigation 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 pursuant to a plea bargain, which has not been 

reversed. The deputy was authorized by statute 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 dismissed his cause of action for negligence 

against the County and Tebbetts. We disagree. 

Peace officers have a duty to act reasonably when using force, but the 

reasonableness of an officer’s conduct is determined in light of the totality of the 
16 

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, 133.) 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 any injury of that kind 

proximately caused by its failure to discharge the duty unless it establishes it exercised 

reasonable diligence to discharge the duty. (MacDonald v. California (1991) 230 

Cal.App.3d 319, 326-327.) 

An officer is justified in the use of reasonable force to detain or arrest a suspect, 

prevent escape, or overcome resistance, 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 objectively reasonable under all the 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 meaning of Penal Code, section 835a. Further, 

plaintiff cites no authority for the proposition 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 imprison him, which was breached to his damage. 

In opposition to the motion, and again on appeal, plaintiff cited no authority for the 
17 

proposition that the use of a Taser against a resistant suspect constitutes a breach of a 

duty of care where deadly force was not employed. Given the statutory authorization to 

use force, and the absence of allegations of the use of deadly force, the complaint does 

not properly plead a duty, or a breach of duty, of care. 

 2. The Order Granting Summary Judgment 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 violations, assault, and battery) based on its 

determination that the County 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 burden 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 evidence which requires the fact-weighing 

procedures of a trial. (Soto v. County of Riverside (2008) 162 Cal.App.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 motion (except that which the court properly 

excluded) and the uncontradicted inferences 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 independently, 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.App.4th 870, 878.) 

 b. The County and Tebbetts Are Immune From Suit.

The doctrine of qualified immunity protects 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].) The dispositive theory is whether it would have been clear to a 

reasonable officer that his conduct was unlawful 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 liability for civil damages if their actions 

did not violate clearly established statutory or constitutional 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 question is whether the state of the law at the time of an 

incident provided “fair warning” to the defendants that their alleged conduct was 

unconstitutional. (Ibid.) 
19 

 To determine whether an officer is entitled to qualified immunity for an unlawful 

arrest, a two part test is employed. First, applying the facts in the light most favorable to 

the plaintiff, we determine whether the deputy violated the plaintiff’s constitutional 

rights. (Saucier v. Katz, supra, 533 U.S. at p. 201, overruled 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 violation 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 regarding 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 because 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 force 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 the 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 carries 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 excessive 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 suspect’s constitutional rights have been violated requires a 

balancing of the nature and quality of the intrusion on the individual’s Fourth 

Amendment interests against the governmental interests 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 the suspect posed an immediate threat to the safety of the 

officers or others, and (3) whether the suspect 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 immediate threat to the safety of officers. (Mattos, at p. 441.) 

 A Taser employed in dart-mode constitutes an intermediate, significant level of 

force. (Mattos v. Agarano, supra, 661 F.3d at p. 449.) However, Tasers carry a 

significantly lower risk of injury than physical force, 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 May 2007 (when the incident occurred) that 

using a Taser repeatedly on a suspect actively resisting arrest and refusing to be 

handcuffed amounted to excessive force. 

 In Mattos v. Agarano, a pregnant woman was tased during a traffic stop, in which 

she refused to sign a citation or exit her car. The Ninth Circuit determined that a 

constitutional violation had occurred, but nonetheless found the officer was entitled to 

qualified immunity because he did not violate clearly 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 force, 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 1086, 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 threaten 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 was 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 posed 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 tase suspect multiple times where he was 

immobilized after the first tasing].) However, we have found no cases holding that, as a 
22 

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 two individuals who had been drinking and 

who were reportedly engaged in a fight. One suspect complied with the officer’s 

directions by exiting the garage, but plaintiff became loud and belligerent, refused to 

comply with directions, and attempted 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 fighting is not a trivial violation. 

The officer did not violate clearly established law when he tased plaintiff, given 

the reasonable concern for officer safety under the circumstances, the statute authorizing 

reasonable force to make an arrest, and the intermediate 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 than 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 summary 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.